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DRAFT FOR ATTORNEY REVIEW — NOT FINAL

Woods v. Cobleigh, 75 F. Supp. 125 (1947)

Citation
Woods v. Cobleigh, 75 F. Supp. 125 (1947)
Parent Document
Woods v. Cobleigh, 75 F. Supp. 125 (1947)
Jurisdiction
New Hampshire (state)
Effective Date
1947-12-19

Full Text

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The plaintiff prays for (1) a permanent injunction and for judgment against the defendants in an amount representing three times the overcharges; (2) that the defendants be ordered to make restitution to each of the tenants from whom the excess beyond the maximum rent has been demanded and received; and (3) that if restitution be ordered by the court, there be judgment in favor of the administrator for twice the amount of the overcharges. The damages here sought are in the nature of a penalty which under the terms of Section 205(e) of the Act must be as*130sessed at least to the extent of the overcharges upon a finding, as is here required, that there has been a violation. “The’undeviating command of the statute fixes the amount of the damages to'be recovered and deprives the court of any discretionary leeway in connection with it.” Porter v. Rumsey, 10 Cir., 159 F.2d 180, 181. While the minimum is fixed, .the maximum is by the statute made contingent in the first instance upon whether the person charged establishes by a preponderance of the evidence that the violation was neither willful nor the result of failure to take practicable precautions against its occurrence. If this burden is met, then the damages are limited to the overcharge, but if not met in whole or in part, the court in its discretion may determine what amount,, not exceeding three times the amount of the overcharges, is to be levied. “Willfulness” within the enforcement provisions of subsection (e) of the Act means intentional, knowing, voluntary, deliberate, or obstinate, as distinguished from malevolent, or specifically designed to be violative of the law. “Practicable precaution” means that the act is capable of being done or that performance is possible and that by the exercise of ordinary, reasonable care and caution, it is possible to avoid the commission of a wrongdoing. Bowles v. Weitz, D.C., 64 F.Supp. 829.