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Specific Performance. A court can order as the equitable remedy that one of the parties does a specific thing. Yes, in principle. But no in practice.

The real world use of Specific Performance is mostly in Real Property ie the ownership of land and this is because land is very obviously not fungible. The square meter of land I need to get my cows from the grazing field to the nearby milking shed is not in any way equivalent to an otherwise similar square meter of land on the far side of the field leading nowhere, and having the wrong one can't meaningfully be compensated with money whereas the court can just order Specific Performance (ie the wrongful owner hands over the land) to fix the problem.

But even beyond that in practice class actions are primarily about the lawyers getting a healthy pay day. $1M each for us as lawyers and each individual "participant" in the class action gets $1 and a 5% discount coupon that expires in six weeks? Sounds good. For the lawyers the incentive is that pay day and the only reason to care about their participants is that if they're treated too poorly a judge may not sign off on the deal.




We really need something with fangs that actually hurts companies. These “kid gloves” solutions in the USA do not incentivize good behavior.


The visceral desire for retribution is half of the problem here. Companies respond to incentives. The problem isn't generally the price. When they get caught the cost is generally more than the benefit they received.

The problem is that they often don't get caught, or find a way to weasel out of it. As a result the managers who do it will be rewarded most of the time, and even when they're on the wrong side of the gamble, half the time they'll already have left for another company. Raising the penalty wouldn't deter that.

What you need is a remedy that can address the offense. Order them to publish the source code to the system for 10 years, so that anyone can audit or modify it in case they try something similar again. Not only does it make it harder for them to reoffend, it's the kind of penalty that corporate lawyers hate, and then they'll be more likely to insist on policies to prevent that from happening to begin with, which puts pressure on preventing the problem from a different angle.


Specific performance is a contractual remedy. It is rarely granted because contracts are usually about business arrangements, and you can solve most of those problems with money. So for contracts the usual remedy is monetary damages.

Courts are more than able to order parties to do things without invoking specific performance via injunctive relief, which you’ll see from the complaint is what is being sought by the plaintiffs.


Injunctive relief requires that you show that unless the court provides this relief the harm is irreparable. I guess we'll see.


This is true of almost all equitable remedies - you have to show that money won’t make you whole. Luckily the bar for that is much lower than for contractual disputes, especially disputes like this where an ongoing violation of someone’s statutory rights is allegedly happening.




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