whats equitable assignment

Equitable Assignment: Everything You Need to Know

An equitable assignment is one that does not fulfill the statutory criteria for a legal assignment, but is binding and upheld by the courts in the interest of equability, justice, and fairness. 3 min read updated on February 01, 2023

An equitable assignment is one that does not fulfill the statutory criteria for a legal assignment, but is binding and upheld by the courts in the interest of equability, justice, and fairness.

Equitable Assignment

An equitable assignment may not appear to be self-evident by the law's standard, but it presents the assignee with a title that is protected and recognized in equity. It's based on the essence of a declaration of trust; specifically, essential fairness and natural justice. As long as there is valuable consideration involved, it does not matter if a formal agreement is signed. There needs to be some sort of intent displayed from one party to assign and the other party to receive.

The evaluation of a righteous equitable assignment is completed by determining if a debtor would rationally pay the debt to another party alleging to be the assignee. Equitable assignments can be created by:

• The assignor informing the assignee that they transferred a right to them
• The assignor instructing the other party to release their obligation from the assignee and place it instead on the assignor

The only part of an agreement that can be assigned is the benefit. Generally speaking, there is no prerequisite for the written notice to be received or given. The significant characteristic that separates an equitable assignment from a legal assignment is that most of the time, an equitable assignee may not take action against a third party. Instead, it must rely on the guidelines governing equitable assignments. In other words, the equitable assignee must team up with the assignor to take action.

The Doctrine of Equitable Assignment in Wisconsin

In Dow Family LLC v. PHH Mortgage Corp ., the Wisconsin Supreme Court issued in favor of the doctrine of equitable assignment. The case was similar to many other foreclosure cases, except this one came with a twist. Essentially, Dow Family LLC purchased a property and the property owner insisted the mortgage on the property had been paid off. However, in actuality, it wasn't. 

Prior to the sale, the mortgage on the property was with PHH Mortgage Corp. When PHH went to foreclose on the mortgage, Dow Family LLC contested it. There was one specific rebuttal that caught the attention of the Wisconsin Supreme Court. The official mortgage on record was with MERS, an appointee for the original lender, U.S. Bank.

Dow argued that PHH couldn't foreclose on the property because the true owner was MERS. Essentially, Dow was stating that the mortgage was never assigned to PHH. Based on this argument, PHH utilized the doctrine of equitable assignment.

Based on a case from 1859, Croft v. Bunster, the court determined that the security for a note is equitably assigned when the note is assigned without a need for an independent, written assignment. Additionally, Dow contended that the statute of frauds prohibits the utilization of the doctrine, mainly because it claimed every assignment on a property must be formally recorded.

During the case, Dow argued that the MERS system, which stored the data regarding the mortgage, was fundamentally flawed. According to the court, the statute of frauds was satisfied because the equitable assignment was in accordance with the operation of law. Most importantly, the court avoided all consideration regarding the MERS system, concluding it was not significant in their decision. 

The outcome was a major win for lenders, as they were relying on the doctrine specifically for these types of circumstances.

Most experts agree that this outcome makes sense in the current mortgage-lending environment. This is due to the fact that it is still quite common for mortgages to be bundled up into mortgage-backed securities and sold on the secondary market.

Many economists claim that by not requiring mortgages to be recorded each time a transfer is completed, the loans are more easily marketed to investors. Additionally, debtors know who their current mortgage company is because the new lender must always notify the current borrower in order to receive payment. It was determined that recording and documenting the mortgage merely provides a signal to the rest of the world that the property owner secures a debt.

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Assignments: why you need to serve a notice of assignment

It's the day of completion; security is taken, assignments are completed and funds move. Everyone breathes a sigh of relief. At this point, no-one wants to create unnecessary paperwork - not even the lawyers! Notices of assignment are, in some circumstances, optional. However, in other transactions they could be crucial to a lender's enforcement strategy. In the article below, we have given you the facts you need to consider when deciding whether or not you need to serve notice of assignment.

What issues are there with serving notice of assignment?

Assignments are useful tools for adding flexibility to banking transactions. They enable the transfer of one party's rights under a contract to a new party (for example, the right to receive an income stream or a debt) and allow security to be taken over intangible assets which might be unsuitable targets for a fixed charge. A lender's security net will often include assignments over contracts (such as insurance or material contracts), intellectual property rights, investments or receivables.

An assignment can be a legal assignment or an equitable assignment. If a legal assignment is required, the assignment must comply with a set of formalities set out in s136 of the Law of Property Act 1925, which include the requirement to give notice to the contract counterparty.

The main difference between legal and equitable assignments (other than the formalities required to create them) is that with a legal assignment, the assignee can usually bring an action against the contract counterparty in its own name following assignment. However, with an equitable assignment, the assignee will usually be required to join in proceedings with the assignor (unless the assignee has been granted specific powers to circumvent that). That may be problematic if the assignor is no longer available or interested in participating.

Why should we serve a notice of assignment?

The legal status of the assignment may affect the credit scoring that can be given to a particular class of assets. It may also affect a lender's ability to effect part of its exit strategy if that strategy requires the lender to be able to deal directly with the contract counterparty.

The case of General Nutrition Investment Company (GNIC) v Holland and Barrett International Ltd and another (H&B) provides an example of an equitable assignee being unable to deal directly with a contract counterparty as a result of a failure to provide a notice of assignment.

The case concerned the assignment of a trade mark licence to GNIC . The other party to the licence agreement was H&B. H&B had not received notice of the assignment. GNIC tried to terminate the licence agreement for breach by serving a notice of termination. H&B disputed the termination. By this point in time the original licensor had been dissolved and so was unable to assist.

At a hearing of preliminary issues, the High Court held that the notices of termination served by GNIC , as an equitable assignee, were invalid, because no notice of the assignment had been given to the licensee. Although only a High Court decision, this follows a Court of Appeal decision in the Warner Bros Records Inc v Rollgreen Ltd case, which was decided in the context of the attempt to exercise an option.

In both cases, an equitable assignee attempted to exercise a contractual right that would change the contractual relationship between the parties (i.e. by terminating the contractual relationship or exercising an option to extend the term of a licence). The judge in GNIC felt that "in each case, the counterparty (the recipient of the relevant notice) is entitled to see that the potential change in his contractual position is brought about by a person who is entitled, and whom he can see to be entitled, to bring about that change".

In a security context, this could hamper the ability of a lender to maximise the value of the secured assets but yet is a constraint that, in most transactions, could be easily avoided.

Why not serve notice?

Sometimes it's just not necessary or desirable. For example:

• If security is being taken over a large number of low value receivables or contracts, the time and cost involved in giving notice may be disproportionate to the additional value gained by obtaining a legal rather than an equitable assignment.
• If enforcement action were required, the equitable assignee typically has the option to join in the assignor to any proceedings (if it could not be waived by the court) and provision could be made in the assignment deed for the assignor to assist in such situations. Powers of attorney are also typically granted so that a lender can bring an action in the assignor's name.
• Enforcement is often not considered to be a significant issue given that the vast majority of assignees will never need to bring claims against the contract counterparty.

Care should however, be taken in all circumstances where the underlying contract contains a ban on assignment, as the contract counterparty would not have to recognise an assignment that is made in contravention of that ban. Furthermore, that contravention in itself may trigger termination and/or other rights in the assigned contract, that could affect the value of any underlying security.

What about acknowledgements of notices?

A simple acknowledgement of service of notice is simply evidence of the notice having been received. However, these documents often contain commitments or assurances by the contract counterparty which increase their value to the assignee.

Best practice for serving notice of assignment

Each transaction is different and the weighting given to each element of the security package will depend upon the nature of the debt and the borrower's business. The service of a notice of assignment may be a necessity or an optional extra. In each case, the question of whether to serve notice is best considered with your advisers at the start of a transaction to allow time for the lender's priorities to be highlighted to the borrowers and captured within the documents.

For further advice on serving notice of assignment please contact Kirsty Barnes or Catherine Phillips  from our Banking & Finance team.

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Legal Framework of Equitable Assignments in Finance

Financiers and lessors often take an assignment over debts or certain rights under contracts as part of their security package. Depending on how this is done, an assignment can either be characterised as a legal or equitable assignment under English law. Stephenson Harwood’s Dipesh Bharania explains

A key difference between a legal and equitable assignment is the ability of the assignee, be it a financier or lessor, to bring proceedings in its own name against the debtor for payment of the debt owed, or to enforce rights in the contract.

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A legal assignee has this right, but there is a question over whether an equitable assignee has this right or not.

In the case of General Nutrition Investment Company v Holland and Barrett International Ltd and another [2017] EWHC 746 Ch, the High Court held that the beneficiary of an equitable assignment did not have the right to bring proceedings in its own name, and had to do so jointly with the assignor which had assigned rights in the underlying contract.

This raises questions about the equitable assignment, as it appears to contradict other judgments which permit an equitable assignee to take proceedings in its own name. The predecessor company of General Nutrition Investment Company (GNIC) entered into a trade mark licence agreement in March 2003 with Holland and Barrett (H&B) allowing H&B to use certain trademarks in the UK.

After complex internal restructuring, the original contracting party had been dissolved and GNIC was the successor company, which as assignee had been assigned both the rights under the original trademark licence agreement, and the rights to the trademarks themselves. GNIC alleged that H&B was in breach of the licence agreement and served a number of notices of termination on H&B purporting to terminate the agreement.

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The court had to decide whether any of these notices of termination were effective, and whether GNIC had the right to serve such notices, and bring and maintain proceedings against H&B in its own name.

The formalities for a legal assignment are set out in Section 136 of the Law of Property Act 1925, including that the assignment must be:

In writing and executed by the assignor “Absolute” and unconditional, Not be expressed to be “by way of charge”, and Notified in writing to the person against whom the assignor could enforce the assigned rights – usually the other contracting party.

It can often suit the assignor, the assignee and the third party to allow the assignor to deal with the third party, for notice not to be given (certainly initially) and the assignee to remain a silent party. This method is frequently used in financing documents, with notice only being given at a later date (rather than at the time of assignment) when there is a possibility of enforcement on the horizon.

An equitable assignment tends to be created when an assignment does not meet one or more of the requirements for a legal assignment. The main differences between a legal and an equitable assignment are priority (and the established principle that the assignee who serves notice first takes priority over any other assignee (where notice is not given)) and an equitable assignee needing to join the assignor as a party in any legal proceedings it brings against the third-party debtor.

However, two recent cases have lessened the distinction in practice between the two. In the Bexhill case the Court of Appeal recognised that an equitable assignee could take action in its own name without joining in the assignor. In the Ardila case, where notice had been given to the contracting party, the High Court looked at the terms of the notice and decided that what had seemed to be a legal assignment was in fact an equitable assignment because the wording of the notice seemed to retain rights for the assignor. The court used this reasoning to declare it an equitable assignment, despite the notice having been given as required.

Returning to the case in point, after the internal reorganisation and subsequent assignment of the trade mark licence agreement to GNIC, no notices of such assignment were served on H&B by the assignor prior to the purported termination of the agreement or the issue of proceedings. GNIC maintained that as it took the place of its predecessor as the “Licensor”, it became the body entitled to exercise rights of termination under the agreement. H&B’s contention was that, as an equitable assignee, GNIC did not have the right to terminate the agreement or bring proceedings in its own name.

It is widely accepted that, until a notice of assignment is given, and (i) the third party can validly discharge its obligations under the contract to the assignor, and (ii) the third party may raise against the assignee any defence or set-off which he could have raised against the assignor (provided that the matter on which the defence is based arose before notice was received) and the contracting party and assignor can amend the terms of the contract without the assignee’s consent.

The High Court considered that previous case law on this issue was binding as it had not been overruled or materially distinguished in any subsequent cases heard, and held that notice to the contracting third party is necessary to perfect the right of the assignee. Additional weight was given to the fact that a substantive contractual right (in this case, the right to terminate the licence agreement) had been assigned rather than just the assignment of a debt. Consequently, the contractual relationship between the parties was seeking to be amended and therefore the third party was entitled to see that such change was being effected by a party which had the right to do so and whom it knew to have such rights. The Court maintained that H&B cannot be expected to accept a notice of termination from an entity which turns out to be an assignee when it had never been given notice of that assignment.

While the High Court accepted that this decision may be appealed, this has raised a question about equitable assignments and the rights of the equitable assignee under English law. In the meantime, in practice, parties will have to scrutinise what type of right they are seeking, whether in security or as a full legal assignment and opt for the method which provides the clearest outcome possible as the law stands when they take the assignment. Anyone taking an assignment of the benefit of a contract should clearly ensure that notice is served on the other contracting party if it wants to be sure it can act in its own name under that contract against the other contracting party if need be.

Otherwise, there is a risk that an equitable assignee will be unable to enforce substantive contractual rights without having to join in the assignor in proceedings. That said, it may still be commercially preferable to have an equitable assignment for particular financing and leasing structures where it is not thought difficult to join the assignor at a later date if need be. In this case it was not possible, as the assignor had been dissolved. Advice should be sought about the type of assignment to be taken in each transaction pending further clarification from the courts.

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Assignment of a claim or cause of action | Practical Law

Assignment of a claim or cause of action

Practical law uk practice note 1-522-7861  (approx. 32 pages).

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Equitable assignment

Practical law uk glossary 2-107-6540  (approx. 3 pages).

• The assignor can inform the assignee that he transfers a right or rights to him.
• The assignor can instruct the other party or parties to the agreement to discharge their obligation to the assignee instead of the assignor.

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equitable assignment

• A transfer of property or rights, particularly those in which the transferor has a future interest, that may not technically be legal, but would be considered fair and just by a court focusing on justice and fairness
• Despite the lack of a written contract, the judge recognized the equitable assignment of the store's future profits to the plaintiff.
• The attorney argued that even though there was no formal agreement, the bank's actions reflected an equitable assignment of the debts.
• While there was no formal deed of transfer, the court acknowledged the equitable assignment of the property based on the circumstances.
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English law assignments of part of a debt: Practical considerations

United Kingdom |  Publication |  December 2019

Enforcing partially assigned debts against the debtor

The increase of supply chain finance has driven an increased interest in parties considering the sale and purchase of parts of debts (as opposed to purchasing debts in their entirety).

While under English law part of a debt can be assigned, there is a general requirement that the relevant assignee joins the assignor to any proceedings against the debtor, which potentially impedes the assignee’s ability to enforce against the debtor efficiently.

This note considers whether this requirement may be dispensed with in certain circumstances.

Can you assign part of a debt?

Under English law, the beneficial ownership of part of a debt can be assigned, although the legal ownership cannot. 1  This means that an assignment of part of a debt will take effect as an equitable assignment instead of a legal assignment.

Joining the assignor to proceedings against the debtor

While both equitable and legal assignments are capable of removing the assigned asset from the insolvency estate of the assignor, failure to obtain a legal assignment and relying solely on an equitable assignment may require the assignee to join the relevant assignor as a party to any enforcement action against the debtor.

An assignee of part of a debt will want to be able to sue a debtor in its own name and, if it is required to join the assignor to proceedings against the debtor, this could add additional costs and delays if the assignor was unwilling to cooperate. 2

Kapoor v National Westminster Bank plc

English courts have, in recent years, been pragmatic in allowing an assignee of part of a debt to sue the debtor in its own name without the cooperation of the assignor.

In Charnesh Kapoor v National Westminster Bank plc, Kian Seng Tan 3 the court held that an equitable assignee of part of a debt is entitled in its own right and name to bring proceedings for the assigned debt. The equitable assignee will usually be required to join the assignor to the proceedings in order to ensure that the debtor is not exposed to double recovery, but the requirement is a procedural one that can be dispensed with by the court.

The reason for the requirement that an equitable assignee joins the assignor to proceedings against the debtor is not that the assignee has no right which it can assert independently, but that the debtor ought to be protected from the possibility of any further claim by the assignor who should therefore be bound by the judgment.

Application of Kapoor

It is a common feature of supply chain finance transactions that the assigned debt (or part of the debt) is supported by an independent payment undertaking. Such independent payment undertaking makes it clear that the debtor cannot raise defences and that it is required to pay the relevant debt (or part of a debt) without set-off or counterclaim. In respect of an assignee of part of an independent payment undertaking which is not disputed and has itself been equitably assigned to the assignee, we believe that there are good grounds that an English court would accept that the assignee is allowed to pursue an action directly against the debtor without needing the assignor to be joined, as this is likely to be a matter of procedure only, not substance.

This analysis is limited to English law and does not consider the laws of any other jurisdiction.

Notwithstanding the helpful clarifications summarised in Kapoor, as many receivables financing transactions involve a number of cross-border elements, assignees should continue to consider the effect of the laws (and, potentially court procedures) of any other relevant jurisdictions on the assignment of part of a debt even where the sale of such partial debt is completed under English law.

Legal title cannot be assigned in respect of part of a debt. A partial assignment would not satisfy the requirements for a legal assignment of section 136 of the Law of Property Act 1925.

If an assignor does not consent to being joined as a plaintiff in proceedings against the debtor it would be necessary to join the assignor as a co-defendant. However, where an assignor has gone into administration or liquidation, there may be a statutory prohibition on joining such assignor as a co-defendant (without the leave of the court or in certain circumstances the consent of the administrator).

[2011] EWCA Civ 1083

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Equitable assignment

Practical law uk glossary 2-107-6540  (approx. 3 pages).

• The assignor can inform the assignee that he transfers a right or rights to him.
• The assignor can instruct the other party or parties to the agreement to discharge their obligation to the assignee instead of the assignor.
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Home  /  Inclusive and Equitable Teaching  /  What is Inclusive and Equitable Teaching?  /  What are equitable assessment practices? 

What are equitable assessment practices? 

Inclusive assessment is about more than evaluating students. It is the on-going activities that allow students and instructors to understand student progress on meeting the course learning objectives.

General Principles

• Student learning is prompted by early, low-stakes, frequent assessment and feedback for learning.
• Students will rise to high expectations if they have appropriate support.
• Assessments should utilize multiple and varied methods of student performance.
• Student learning is enhanced by exercises or assignments that promote self-assessment and self-awareness. An example of this may be the use of exam wrappers.
• “Grading on a curve does not allow all students to see how close they are coming to high standards of performance. If all students reach the standard, it is okay for all to reach the highest grade” (Ginsberg & Wlodkowski, Diversity & Motivation, 2009).
• Assessment occurs before, during, and after learning.
• Assessments need to be transparent in their design . This includes clearly articulating step-by-step instructions as well as the criteria for success.

Read through the Inclusive Assessment Chart (PDF) . Included in the second column are some of the things that most of us do. As you read through, check off in front of it the ones you already do. In the fourth column are ideas for how you might enhance what you already do by using more inclusive, student-centered language, and some new ideas that you might like to try. As you read through this list, check off a few you might like to adopt or adapt.

Grading, Equity and Ungrading

There has been increased attention and scrutiny over grading practices and equity. One of the reasons for this is that evidence has pointed to the ways grading negatively impacts learning (Kohn, 2011). Prominent grading approaches have often privileged individuals with the greatest resources, preparation, and desired behaviors (Blum, 2020). As a result many faculty have considered the practice of ungrading. Ungrading is not as simple as just removing grades. The word “ungrading” (an active present participle) suggests that we need to do intentional, critical work to dismantle traditional and standardized approaches to assessment ( Stommel, 2020 ). If you are interesting in learning more about ungrading and how to get started, below are a few resources:

• Blum, Susan (2020). Ungrading: Why rating students undermines learning (and what to do instead)
• Davidson, Cathy (2015). “Contract Grading and Peer Review”
• Schinske, Jeffrey & Tanner, Kimberly (2014). “Teaching More by Grading Less”
• Sorens, Clarissa (2020). “Ungrading: What it is and Why Should We Use It?”
• Stommel, Jesse (2017). “Why I Don’t Grade”
• Stomel, Jesse (2020). “Ungrading: An FAQ”

The Law Dictionary

Your Free Online Legal Dictionary • Featuring Black’s Law Dictionary, 2nd Ed.

EQUITABLE ASSIGNMENT Definition & Legal Meaning

Definition & citations:.

A result that falls short of meeting the requirements of a legal assignment, yet, in the interest of fairness and justice, will be enforced by the courts, and documented as valid.

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Equitable Estoppel

Equitable estoppel is a legal principle that stops someone from taking a legal action that conflicts with his previous claims or behaviors. Essentially, equitable estoppel is a method of preventing someone from going back on his word in a court of law. For example, equitable estoppel would be granted to a defendant if the plaintiff previously gave his permission for the defendant to do something, and then sued the defendant once he did. To explore this concept, consider the following equitable estoppel definition.

Definition of Equitable Estoppel

• A legal principle that prevents someone from taking legal action that conflicts with his previous claims or behaviors.

Origin of Estoppel

1575-1585       Middle French  estoupail

What is Estoppel

Estoppel is a term that is notoriously difficult to define in legal terminology. In its simplest form, “estoppel” translates to mean “stopped” in French, as in someone is being stopped from doing or saying something. Because the term is so vague, it has been attached to numerous areas of law. The late Lord Denning (1899-1999), an English judge who has been described as “the greatest judge of the century,” attempted to explain the difficulty of defining estoppel by saying that:

“[With estoppel], someone is stopped from saying something or other, or doing something or other, or contesting something or other.”

Types of Estoppel

The purpose of estoppel is to hopefully prevent the wasting of court resources by stopping people from abusing the legal system by filing frivolous lawsuits. However, estoppel can also be considered controversial. This is because some see it as a way of preventing people from exercising what would have been considered their legal rights if they were involved in different circumstances.

Anyone who wishes to assert an estoppel case must come to the court with “ clean hands .” This means that the person bringing the suit must not do so unethically or as an act of bad faith . This clean hands doctrine is typically stated as “those who seek equity must do equity.”

What follows are the three main types of estoppel that can be exercised in a court of law. Because estoppel is a broad term that can be defined in many ways, these are arguably the three most important types of estoppel to consider.

Equitable estoppel, simply put, is a way of stopping someone from going back on his word. It is a way of stopping someone from taking legal action that conflicts with his previous claims or behavior, or for testifying to something early on, then changing that testimony later.

Example of equitable estoppel:

Jessica takes her car to the mechanic to have some work done. During the process, the mechanic accidentally slips with one of his tools and puts a small dent in Jessica’s car. He brings Jessica’s attention to the dent and offers to fix it, but she says that it’s only cosmetic and not to worry about it.

Jessica cannot, then, file a lawsuit against the mechanic for damaging her car. If she were to do so, she would be estopped by the courts, since her claim would run counter to her earlier forgiveness of the damages that she had incurred because of the mechanic’s mistake.

Promissory Estoppel

Promissory estoppel deals with contract law . In a case concerning promissory estoppel, one person cannot promise the other party to a contract that part or all of the contract will not be enforced, only to later try to enforce that provision anyway. For instance, if an employer tells an employee that mandatory overtime will not be enforced, despite being part of the employee’s contract, the employer cannot then attempt to enforce it later. The employee is not then obligated to abide by that part of the contract, and promissory estoppel would be granted in his favor.

Collateral Estoppel

Collateral estoppel stops a person from bringing the same issue before the court once a court has ruled on it. For instance, collateral estoppel stops a party from bringing the same lawsuit against the same person, but in a different court, simply because he did not like the decision he was given in the first court. Although double jeopardy applies only to criminal trials, this is a similar concept – that once a matter has been settled by a court, it cannot be brought again.

It is important to note the distinctions between collateral estoppel and appeals. Collateral estoppel does not prevent someone from filing an appeal to have a different court reconsider the issues at hand. Instead, collateral estoppel stops someone from bringing a frivolous lawsuit by “trying to get in through the back door what he couldn’t get in through the front.” In other words, it prevents people from filing the same lawsuit in the hopes of obtaining a different result.

Doctrine of Equitable Estoppel

The doctrine of equitable estoppel prevents one person from taking advantage of another. This occurs when party A has influenced party B to act in a way that resulted in party B being injured, or incurring damages of some sort. The doctrine of equitable estoppel is founded on the principles found in fraud cases. Essentially, the doctrine of equitable estoppel prevents one party from taking a different position at trial than he took previously – especially if the other party would incur harm as a result of the change.

Legal Estoppel

There is also the concept of legal estoppel, which can be divided into two categories: estoppel by deed , and estoppel by record. Insofar as the doctrine of estoppel by deed, those who are parties to the deed for a property are prohibited from denying any of the material facts declared in the deed. Further, parties to a deed are prohibited from asserting a right or title that would be issued against the laws and rules associated with that transaction.

For example:

Betsy transfers the title of a plot of land to her daughter by deed. However, her daughter is unaware of the fact that Betsy does not actually own the land at the time of the transfer. Betsy acquires the title to the property after the transfer.

Technically, this means that Betsy’s daughter does not legally own the property because Betsy did not own the property when she transferred it to her. Betsy did not have the legal right to transfer the property to her daughter at the time of the transfer. However, under the doctrine of estoppel by deed, it is up to the court’s discretion to decide to “fix” this imperfection by finding the daughter to be the rightful owner of the property anyway.

Equitable Estoppel Example Involving Eyeglass Manufacturers

An example of equitable estoppel can be found in the case of Aspex Eyewear Inc. against Clariti Eyewear Inc. In March of 2007, Aspex Eyewear Inc. sued Clariti Eyewear Inc. alleging that Clariti violated Aspex’s patents by selling AirMag, a particular brand of eyeglass frames. Once Aspex became aware of this product, Aspex sent Clariti two letters (one for each patent) asking that they cease and desist selling the product immediately.

Clariti responded to the letters, noting that they had never intended to infringe upon Aspex’s patents. Clariti requested information from Aspex to review and responded back to Aspex that it did not believe Clariti’s products infringed upon Aspex’s patents.

After this incident, Clariti did not hear anything from Aspex for over three years. At this point, Aspex sent Clariti another letter claiming that the AirMag product infringed upon one of the patents referred to three years prior. Clariti refused to stop selling the AirMag brand, and so Aspex filed a civil lawsuit . The district court dismissed one of the infringement claims, but left the other one active – the ‘747 patent.

Clariti then moved to dismiss the remaining infringement suit, arguing that Aspex was barred by equitable estoppel, due to their remaining silent for three years on the subject. The district court granted Clariti’s motion for dismissal .

On appeal, the Court found that Aspex was misleading when convincing Clariti that Aspex did not intend to enforce the ‘747 patent against Clariti. The Court explained that the misleading conduct came in when Aspex was expected to follow up with statements or action, but failed to do so in a situation where they had an obligation to act or speak. In other words, Aspex should have followed up after receiving Clariti’s response letter. Further, the Court found that Clariti relied on Aspex’s misleading conduct to expand its business, doing so after not hearing anything else from Aspex after the initial incident.

This is where equitable estoppel came in. The evidence in the record suggested that, had Aspex filed suit against Clariti like they had originally threatened, then in all likelihood Clariti would have discontinued their AirMag line and went on to other business ventures. This was enough proof for the Court that Clariti relied on Aspex’s silence as permission to go forward, and that Aspex did not have a leg to stand on in that regard.

Expanding further on the equitable estoppel issue, the Court found that because Clariti relied on Aspex’s misleading conduct to build its business, Clariti’s business would suffer a significant economic downturn if it stopped production of the brand. Therefore, the Court ruled that the district court was correct in ruling that Clariti would suffer damages if Aspex were permitted to go forward with its charge of infringement.

The case was then escalated to the United States Court of Appeals for the Federal Circuit. The Court of Appeals affirmed the decisions of the lower courts. Clariti argued that the district court erred in not fully developing the case and finding all of the facts necessary to declare the case exceptional. Here, however, the Court noted that the district court did not hold a full trial on the issues at hand because the summary judgment involving equitable estoppel effectively ended the litigation .

Related Legal Terms and Issues

• Appeal – An application that is made to a higher court requesting a reversal of a lower court’s decision.
• Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
• Contract – An agreement between two or more parties in which a promise is made to do or provide something in return for a valuable benefit.
• Double Jeopardy – The Fifth Amendment protection from being tried for the same crime twice, and from being compelled to testify against oneself.

Brandon Simmons must resign. Public trust impossible with him on Columbus school board.

"if brandon simmons is truly remorseful, he would stand by the values we all want for columbus school children and announce his resignation and tell the truth.," dispatch editorial board.

• Brandon Simmons has refused to earnestly and, by all indications, truthfully take responsibility for "The Taking Control of the Task Force Narrative" plan.
• An investigation found he and he alone responsible for the vengeful and racially divisive strategy.
• If Brandon Simmons is truly remorseful, he would exit left.

The age-old adage says that "the cover-up is worse than the crime."

In the case of the Columbus Board of Education member Brandon Simmons' "Taking Control of the Task Force Narrative" document scandal, the cover up and the unethical if not criminal misdeeds are equally awful, offensive, bizarre and proof he must resign.

Simmons has refused to earnestly and, by all indications, truthfully take responsibility for the memo despite the results of the investigation his six board colleagues voted to release Tuesday. Simmons abstained from voting to waive attorney-client privilege. 

The investigation report by   Scott Scriven, the Columbus schools outside counsel, found that Simmons and Simmons alone authored the leaked document, a vengeful and racially divisive strategy that what would have discredited and punished Columbus Education Association and other critics of a plan to close school buildings.

Scriven outlined how Simmons has been far from forthcoming.

Brandon Simmons creating a cloud over Columbus schools

While producing zero evidence — something that would be easy if it existed —, Simmons has repeatedly told the press, the public and Scriven, that "many people" were involved.

Not only has he failed to disclose who these many people are, according to Scriven' 12-page investigation report, Simmons has "destroyed (or attempted to destroy) relevant evidence and possibly given other evidence to another individual or individuals to maintain."

"Board Member Simmons has public records in his possession that are the property of Columbus City School District, and he has refused to produce them despite several requests," Scriven's report reads.

Our view: Underhanded plan calls school board's ethics into question. Responsible must resign now

Independently and jointly, the Taking Control of the Task Force Narrative document and Simmons' attempt to deflect blame from himself demonstrate why he is not fit to help lead the district of nearly 46,000 students with an annual budget of just south of  a billion dollars.

Board President Christina Vera said that the board released the investigation to help rebuild trust in the district.

That trust will remain elusive with Simmons' presence on the board. It creates a cloud of confusion that sends an unscrupulous message to students.

For the good of the students whose futures he professed to care so deeply about in an August guest column about the district's ultimately approved 7.7 mil levy, Simmons must exit stage left immediately.

There are real-world consequences that may go beyond public trust.

The document laced with what Vera reportedly described as "crazy ideas" may derail the district's plan to close schools — a necessary step for student success and taxpayer return on investment.

Board action not enough

Columbus school board members — Simmons included — voted to censure Simmons May 29 for the document leaked to the Columbus Education Association, the union representing the district's more than 4,500 teachers and other educational professionals and disseminated by the media.

Vera announced that Simmons was being removed from his two board committee assignments: chair of the Community Engagement & Advocacy Committee and a member of the Equitable & Transparent Resource Management Committee.

The long list of questionable and unethical recommendations targeting CEA, the media and others opposing the closing plan included:

• Not ignoring the "racial dynamic" between unions. "Laying those cards on the table."
• Rewarding "good media outlets” with “priority seating or camera location” and “priority interviews."
• Changing the location of meetings with the teacher's union at the last minute, filling the room with staff and task force members without prior notice and interrupting union members when they try to speak.
• Playing "a buzzer noise after every false statement" told during meeting public comments.
• Not discussing bad or "less than positive" news at certain school board meetings.
• Driving a wedge between the district's two unions by holding a hearing on the "disrespect of classified employees by 'other employees'."
• Before CCS employees speak at meetings, announcing their salaries and how much money they have been paid over the years.
• "Stacking the public comment period with classified employees speaking out against mistreatment by teachers."
• Using loud mechanical equipment to disrupt opponents' press conferences held on "our land."

Simmons is not fit for the job

Ironically, CEA endorsed document leaker school board member Sarah Ingles  and Simmons, now 23, over incumbent board member Carol Beckerle before last year's election.

Simmons, a CCS grad, has issued "apology" statements about the document that have fallen short of what is truly needed to rectify the situation: both the evidence implicating the so-called many people and his resignation.

He has said he deeply regrets not standing by his values during the process and that he was sorry that an incomplete version of the document was leaked to the public.

If Brandon Simmons is truly remorseful, he would stand by the values we all want for Columbus school children and announce his resignation and tell the truth.

This piece was written by Dispatch Opinion Editor Amelia Robinson on behalf of the editorial board of  The Columbus Dispatch .  Editorials are fact-based assessments of issues of importance to the communities we serve. These are not the opinions of our reporting staff members, who strive for neutrality in their reporting.

Equitable assignment

• The assignor can inform the assignee that he transfers a right or rights to him.
• The assignor can instruct the other party or parties to the agreement to discharge their obligation to the assignee instead of the assignor.
• General Contract and Boilerplate
• Breach of Lease Covenants
• Security and Quasi Security