Injunctive relief clause samples

Within the federal judicial system injunctive relief is always predicated upon showing a threat of irreparable harm and an absence of adequate legal remedies. Winter, 555 U.S. at 20; Beacon Theaters v. Westover, 359 U.S. 500, 506–07 (1959); Wisconsin Century, 95 F. 3d at 1366 (7th Cir. 1996). In Wisconsin Century the Court of Appeals affirmed denial of a preliminary injunction because the plaintiffs could not meet this burden. The PSCW rule establishing a new obligation requiring railroads to permit other utilities to co-locate on their rights of way carried with it a standard compensation provision and permitted a railroad asserting the standard compensation was inadequate to secure review and potential modification of the amount. Accordingly, the railroad plaintiff was unable to show that it would suffer an uncompensated loss in the absence of a preliminary injunction. Irreparable harm is harm that “cannot be repaired” and for which money compensation is inadequate. Graham v. Med. Mut. of Ohio, 130 F.3d 293, 296 (7th Cir. 1997). “The moving party must demonstrate that he will likely suffer irreparable harm absent obtaining preliminary injunctive relief.” Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017).

A United States District Court considering a complaint seeking injunctive relief against a PSCW decision establishing an allegedly unlawful and inadequate Environmental Control Charge based upon the Contracts Clause or Takings Clause would also be required to determine whether the Johnson Act, 28 U.S.C.§ 1342,14 restricts its authority to issue injunctive relief. The Johnson Act restriction only applies to an “order affecting rates chargeable by a public utility and made by a State administrative agency or a rate-making body of a State political subdivision,” and only applies if all its enumerated conditions are satisfied. Alabama Public Serv. Comm’n v. Southern Ry. Corp., 341 U.S. 316, 350 (1951); Williams v. Professional Transp. Inc., 284 F. 3d 607, 612 (4th Cir. 2002).15 Because the state authorized financing resulting in the issuance of the Bonds depends upon securities markets and therefore interstate commerce, an agency order threatening substantial impairment of the contractual obligations pertaining to the Bonds and the State Pledge likely would have a meaningful effect on interstate commerce and accordingly failing the 28 U.S.C. § 1342(2) condition that “the order does not interfere with interstate commerce” rendering the Johnson Act prohibition of injunctive relief inapplicable. Nucor Corp. v. Nebraska Public Power Dist., 891 F.2d 1343, 1348 (8th Cir. 1989) ( applying 28 U.S.C. § 1342(2) to affirm injunctive relief based upon effect on interstate commerce).

In conclusion, assuming Legislative Action substantially impairing obligations undertaken pursuant to and protected by the Environmental Trust Financing Statute, coincided with an absence of a waiver of sovereign immunity and the Legislative Action provided no means for monetary compensation for threatened and probable losses17, an established process exists, defined by well-settled legal and equitable standards, for Bondholders (or their Trustee) to bring an action in a federal District Court seeking and, upon satisfying those standards and subject to the equitable discretion of the court, obtaining preliminary and permanent injunctive relief. Although sound and substantial arguments might support the granting of preliminary and permanent injunctive relief to prevent implementation of any law determined to limit, alter, impair or reduce the value of the Environmental Control Charge or the Environmental Control Property in violation of the federal Contract Clause, the decision to do so will be in the discretion of the court requested to take such action, which will be exercised on the basis of the considerations discussed above.

This element of a preliminary injunction requires the fact-finder to analyze the legal arguments underlying the request for injunctive relief. Plaintiffs must “demonstrate[] a reasonable probability of ultimate success on the merits,” showing that the plaintiff is “entitled to the permanent injunction which the complaint demands.” Waste Mgmt.,Inc. v. Wisconsin Solid Waste Recycling Auth., 84 Wis. 2d 462, 467, 267 N.W.2d 659 (Wis. 1978). This means it is not enough for a plaintiff to simply allege a violation of the Wisconsin Contract Clause; instead, a plaintiff must set forth sufficient facts showing by reasonable probability that a Legislative Action violated the clause—at least as it applies to the plaintiff. Nevertheless, whether to grant a temporary injunction is within the court’s discretion. Joint Sch. Dist., No.1, City of Wisconsin Rapids v. Wisconsin Rapids Educ. Ass’n, 70 Wis. 2d 292, 308, 234 N.W.2d 289, 299 (Wis. 1975); Werner v. A. L. Grootemaat& Sons,Inc., 80 Wis. 2d 513, 524, 259 N.W.2d 310 (Wis. 1977) (“Even if the requirements of the statute had been met, granting an injunction is not mandatory.”).

Wisconsin courts have found that interference with contractual rights could be a sufficiently adequate threat to warrant injunctive relief. Pure Milk, 64 Wis. 2d 241, 256–57 (holding that injunction could issue to prevent inducement to breach contracts). Again, however, if any interference with contractual rights could be remedied with money damages, it will be difficult to make the showing of irreparable harm and inadequate remedy at law required for an injunction to issue.

FOVs and NOVs are resolved in some instances by consent decrees. Consent decrees typically involve both injunctive relief and civil penalties. Injunctive relief typically is negotiated first, and agreement on a civil penalty follows. Here, there is no agreement on either injunctive relief or civil penalties. Additionally, there are two unrelated defendants (the Registrant and Cokenergy) and the focus of injunctive relief until the past year was on injunctive relief to be performed by Cokenergy, and the Registrant believed that it would not be forced to undertake meaningful injunctive relief. Over the past year, the Registrant and Cokenergy have just begun to focus on injunctive relief that could be performed by the Registrant to resolve the FOV. Although the Registrant and Cokenergy have begun to discuss that injunctive relief, the form and cost of undertaking that possible injunctive relief remains uncertain. Additionally, there have been no meaningful discussions about the amount of any penalties that the Registrant would agree to pay.

On May25, 2017, Amgen filed a lawsuit in the U.S. District Court for the District of Columbia (the “D.C. District Court”) seeking effectively to reverse the FDA’s May22, 2017 rejection of Amgen’s request for pediatric exclusivity for cinacalcet hydrochloride (Sensipar®/Mimpara®). Four companies seeking to market generic versions of Sensipar® were granted leave to intervene, but all but Amneal Pharmaceuticals LLC have subsequently withdrawn from the case. On February17, 2018, the D.C. District Court denied Amgen’s motion for summary judgment in its entirety, granted the FDA’s cross motion for summary judgment in its entirety, and entered a final judgment for the FDA. On February19, 2018, Amgen filed its notice of appeal of the final judgment. Amgen also filed, with the D.C. District Court, an emergency motion for injunctive relief pending appeal. On February22, 2018, the D.C. District Court denied Amgen’s emergency motion for injunctive relief pending appeal. On February23, 2018, Amgen filed an emergency motion for injunction pending appeal and to expedite briefing and argument in the U.S. Court of Appeals for the District of Columbia Circuit. The FDA and Amneal Pharmaceuticals LLC have until February27, 2018 to file their responses to Amgen’s emergency motion for injunctive relief. Amgen has until March1, 2018 to file its reply.

Consultant acknowledges that the terms of Articles 5, 6, and 7 of this Agreement are reasonably necessary to protect the legitimate interests of the Company, are reasonable in scope and duration, and are not unduly restrictive. Consultant further acknowledges that a breach of any of the terms of Articles 5, 6, or 7 of this Agreement will render irreparable harm to the Company, and that a remedy at law for breach of the Agreement is inadequate, and that the Company shall therefore be entitled to seek any and all equitable relief, including, but not limited to, injunctive relief, and to any other remedy that may be available under any applicable law or agreement between the parties. Consultant acknowledges that an award of damages to the Company does not preclude a court from ordering injunctive relief. Both damages and injunctive relief shall be proper modes of relief and are not to be considered as alternative remedies.

cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief. Each Party hereby further agrees that in the event of any action by any other party for specific performance or injunctive relief, it will not assert that a remedy at law or other remedy would be adequate or that specific performance or injunctive relief in respect of such breach or violation should not be available on the grounds that money damages are adequate or any other grounds. To the extent any Party brings any Legal Proceeding to enforce specifically the performance of the terms and provisions of this Agreement prior to the Closing and the Outside Date, the Outside Date will automatically be extended to (i)the 20th(twentieth) Business Day after such Legal Proceeding is no longer pending or (ii)such other date established by the court presiding over such Legal Proceeding.

of this Agreement, without the necessity of proving the inadequacy of money damages as a remedy and without bond or other security being required, this being in addition to any other remedy to which they are entitled at Law or in equity. Each of the parties hereto hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the parties hereto. Each of the parties hereto hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief. Each party hereto hereby further agrees that in the event of any action by any other party hereto for specific performance or injunctive relief, it will not assert that a remedy at Law or other remedy would be adequate or that specific performance or injunctive relief in respect of such breach or violation should not be available on the grounds that money damages are adequate or any other grounds.

Right to Specific Performance and Injunctive Relief. Nothing herein shall limit the Investor’s right to pursue any other remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief. In this regard, the Issuer hereby agrees that the Investor will be entitled to obtain specific performance and/or injunctive relief with respect to the Issuer’s failure to timely deliver shares of Common Stock upon conversion of the Note as required pursuant to the terms hereof or the Issuer’s obligations regarding the reservation of shares and its transfer agent, including the use, termination, replacement or resignation of the transfer agent and the obligation to deliver an irrevocable instruction and share reservation letter with any subsequent transfer agent. The Issuer agrees that, in such event, all requirements for specific performance and/or preliminary and permanent injunctive relief will be satisfied, including that the Investor would suffer irreparable harm for which there would be no adequate legal remedy. The Issuer further agrees that it will not object to a court or arbitrator granting or ordering specific performance or preliminary and/or permanent injunctive relief in the event the Investor demonstrates that the Issuer has failed to comply with any obligation herein. Such a grant or order may require the Issuer to immediately issue shares to the Investor pursuant to a Conversion Notice and/or require the Issuer to immediately satisfy its obligations regarding the reservation of shares and its transfer agent, including the use, termination, replacement or resignation of the Issuer’s transfer agent and the obligation to deliver an irrevocable instruction and share reservation letter with any subsequent transfer agent. The Issuer further expressly waives any right to any bond in connection with any temporary or preliminary injunction.

By contrast, purely economic injury is generally not considered sufficient to warrant injunctive relief. E.g., Dania Jai Alai Int’l,Inc. v. Murua, 375 So. 2d 57, 58 (Fla. 4th DCA 1979 (loss of income is not irreparable injury); Sou. Fla. Limousines,Inc. v. Broward Cnty. Aviation Dep’t, 512 So. 2d 1059, 1061-62 (Fla. 4th DCA 1987) (no irreparable harm where plaintiff’s competitors were awarded contract and nothing was being taken away from plaintiffs); Dep’t of Transp. v. Kountry Kitchen of Key Largo,Inc., 645 So. 2d 1086, 1086 (Fla. 3d DCA 1994) (lost business resulting from removal of advertising sign does not constitute irreparable harm). For this reason, in contract cases that do not involve intangible rights, but instead feature only monetary losses, making the required showing of irreparable harm is frequently an obstacle.

Bondholders seeking a permanent injunction against an impairment arising from Legislative Action presumably could meet the irreparable harm and inadequate legal remedy requirements by obtaining a judicial declaration of the invalidity of such Legislative Action. A substantial impairment with respect to the payment of Bonds would, it would seem, constitute irreparable injury of a continuing nature supporting the grant of permanent injunctive relief. Florida courts have held that an injunction will lie to enjoin the diversion of public funds for an unauthorized use, Williams v. Town of Dunnellon, 169 So. 631 (Fla. 1936); and have enjoined the illegal expenditure of public funds in contravention of a city charter. Robert G. Lassiter& Co. v. Taylor, 128 So. 14 (Fla. 1930). The threat of diversion of funds pledged to the Bonds would appear to constitute the existence of irreparable injury sufficient to support injunctive relief to the extent that any funds not paid are unlikely to be replaced in the future. A substantial impairment with respect to the payment of Bonds thus may, subject to the court’s discretion(9), constitute irreparable injury of a continuing nature supporting permanent injunctive relief.

Section 11.6Other Remedies; Specific Performance. Except as otherwise provided herein, prior to the Closing, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy. The Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that each Party shall be entitled to enforce specifically the terms and provisions of this Agreement in any court of the United States or any state having jurisdiction and immediate injunctive relief to prevent breaches of this Agreement, without the necessity of proving the inadequacy of money damages as a remedy and without bond or other security being required, this being in addition to any other remedy to which they are entitled at law or in equity. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief. Each Party hereby further agrees that in the event of any action by any other party for specific performance or injunctive relief, it will not assert that a remedy at law or other remedy would be adequate or that specific performance or injunctive relief in respect of such breach or violation should not be available on the grounds that money damages are adequate or any other grounds. Parent acknowledges and agrees that the Company (and after the Reorganization, Newco) shall be entitled to bring an action for specific enforcement to cause Parent to seek enforcement of the provisions of the Subscription Agreements to the fullest extent permissible pursuant to such Subscription Agreements as if it were a party thereto.

4. Injunctive Relief. You agree that damages alone cannot compensate AudioEye in the event of a violation of Section 3 and that, if such violation should occur, injunctive relief will be essential for the protection of AudioEye and its successors and assigns. Accordingly, you agree that, in the event you violate or breach or threaten to violate or breach any of the provisions of Section 3, then AudioEye will be entitled to obtain injunctive relief against you, in addition to such further or other relief as may be available at equity or law. Obtainment of an injunction by AudioEye will not be considered an election of remedies or a waiver of any right to assert any other remedies that AudioEye has at law or in equity, including but not limited to AudioEye’s right to recover the Severance Payment, and to collect actual, statutory, and exemplary damages. No waiver of any breach or violation shall be implied from forbearance or failure by AudioEye to take action.

(b)Section 13(a) shall be inapplicable to a dispute arising out of or relating to Sections 5, 6 or 7 of this Agreement and the following in this Section 13(b) shall apply to any dispute arising out of Sections 5, 6 or 7 of this Agreement. Executive agrees that the Company would suffer irreparable harm if Executive were to breach, or threaten to breach, his agreements in Sections 5, 6 or 7 above and that the Company would by reason of such breach, or threatened breach, be entitled to seek injunctive relief in an appropriate court.Executive also agrees that the Company may claim and recover money damages in addition to injunctive relief. Furthermore, in the event Executive were to breach, or threaten to breach, any of his agreements in Sections 5, 6 or 7 above, any unvested or unpaid portion of any amounts set forth in Section 3(b) above will be forfeited.

LEGAL PROCEEDINGS 2 legalfootnote_14.htm Form 8-K The Trust, the trustees of the Trust, the Advisor and certain officers of the Advisor are defendants in an action filed May2, 2017 in the Superior Court of New Jersey captioned PureShares, LLC d/b/a PureFunds et al. v. ETF Managers Group, LLC et al., Docket No.C-63-17. The PureShares action alleges claims based on disputes arising out of contractual relationships with the Advisor. The action seeks damages in unspecified amounts and injunctive relief based on breach of contract, wrongful termination, and several other theories. At the outset of the litigation, and again a few weeks later, plaintiffs sought temporary injunctive relief. Both motions were denied, and the matter is now proceeding through pretrial discovery. The defendants believe the lawsuit is without merit and intend to vigorously defend themselves against the allegations.

Injunctive Relief. Notwithstanding the foregoing, the Parties shall (in addition to any other remedies that may be available, in law, in equity or otherwise) be entitled to seek injunctive relief in connection with the breach or threatened breach of the covenants of this Agreement without the necessity of proving actual damages.

12.Injunctive Relief. The Parties agree that any breach of Sections 1, 4, or 6 of the Agreement could cause the non-breaching Party substantial and irrevocable damage and, therefore, in the event of any such breach, in addition to such other remedies which may be available, the non-breaching Party shall have the right to specific performance and injunctive relief.

497 1 etfmglitigationsticker.htm 497 STICKER Document Filed pursuant to Rule 497(e)Registration Nos. 333-182274; 811-22310Supplement dated July 2, 2019 to the Prospectus dated January 31, 2019 of theBlueStar Israel Technology ETF (ITEQ)Etho Climate Leadership U.S. ETF (ETHO)AI Powered Equity ETF (AIEQ)ETFMG Alternative Harvest ETF (MJ)The following information supplements each of the above-listed Prospectuses:LitigationPENDING - The Trust, the trustees of the Trust, the Advisor and certain officers of the Advisor are defendants in an action filed May2, 2017 in the Superior Court of New Jersey captioned PureShares, LLC d/b/a PureFunds et al. v. ETF Managers Group, LLC et al., Docket No. C-63-17. The PureShares action alleges claims based on disputes arising out of contractual relationships with the Advisor. The action seeks damages in unspecified amounts and injunctive relief based on breach of contract, wrongful termination, and several other theories. At the outset of the litigation, and again a few weeks later, plaintiffs sought temporary injunctive relief. Both motions were denied, and the matter is now proceeding through pretrial discovery. The defendants believe the lawsuit is without merit and intend to vigorously defend themselves against the allegations. PENDING - The Advisor, its parent, Exchange Traded Managers Group, LLC and its chief executive officer are defendants in a case filed on October 26, 2017 in the United States District Court for the Southern District of New York by NASDAQ, Inc. captioned Nasdaq, Inc. v. Exchange Traded Managers Group, LLC et al., Case 1:17-cv-08252. This action arises out of related facts and circumstances in the New Jersey litigation and asserts claims for breach of contract, wrongful termination and certain other theories with respect to the same exchange traded funds discussed above. The defendants in the Southern District actions believe the lawsuit is without merit and intend to vigorously defend themselves against the allegations and have asserted counterclaims against NASDAQ for breaches of its duties under the related index license agreement and various other agreements.Please retain this Supplement with your Prospectus.