In the context of litigation, temporary restraining orders (TROs) and injunctions are the legal equivalent of hitting the emergency brake — fast, forceful, and sometimes the only thing standing between the status quo and a really bad result that you want to prevent. This kind of relief is not easy to get.

Understanding the Basics

In legal disputes, parties often seek immediate action to prevent harm while a case progresses through the courts. Temporary restraining orders (TROs) and preliminary injunctions are powerful legal tools used to preserve the status quo and prevent irreparable damage.

TRO vs. Preliminary Injunction: What’s the Difference?

When injunctive relief is needed, a party may seek either a TRO or a Preliminary Injunction. While both serve similar purposes, there are some fundamental differences between these two forms of relief:

• Temporary Restraining Order (TRO): A short-term measure that can be granted without notifying the opposing party (ex parte) in urgent situations. This typically lasts 10 to 14 days under federal rules and is renewable in certain circumstances. TROs are more urgent and may be issued without notice to the other party. Jeff Leon, a partner at Karon LLC, explains that TROs are reserved for situations where the complaining party will suffer irreparable harm if the court does not intervene and stop the opposing party’s conduct immediately.
• Preliminary Injunction: A longer-term relief that requires notice to the opposing party and a hearing. It remains in effect until the court reaches a final decision on the case and can significantly impact the litigation strategy. Preliminary injunctions may only be issued after both parties are noticed for a hearing and given an opportunity to be heard either in a live hearing or through a briefing. To obtain a preliminary injunction, the complaining party must establish a likelihood of success on the merits of the claims and that they are likely to suffer irreparable harm unless the court enjoins the other party’s conduct.

As Leon notes, a TRO freezes the situation immediately, while a preliminary injunction is a mini-trial before the trial.

When To Seek a TRO or Preliminary Injunction

Determining whether to seek a TRO or a preliminary injunction depends on the nature and urgency of the harm faced by a party. Courts evaluate several factors to decide whether injunctive relief is warranted:

• Likelihood of success on the merits: Does the applicant have a strong case? This means the party must show that it is likely to prevail on the underlying claims when the case is fully heard
• Irreparable harm: Would damages be insufficient to make the party whole? The harm must be of such a nature that it cannot be adequately compensated by money or repaired through legal remedies.
• Balance of equities: Does the requested relief fairly balance the rights of both parties? The court weighs the potential harm to the plaintiff if the injunction is denied against the harm to the defendant if it is granted.
• Public interest: Does granting or denying the relief serve the broader legal or societal interests? The court considers the effect of the injunction on non-parties and the public.

Timothy Pastore of Montgomery McCracken emphasizes that these measures are used when there’s an immediate threat of harm that cannot be undone with monetary damages alone.

Common Cases Involving TROs and Injunctions

TROs and Preliminary Injunctions are commonly used in specific types of litigation where immediate relief is necessary. These cases often involve proprietary business interests, contractual obligations, or significant public concerns, such as:

• Trade secret disputes: Businesses often seek injunctive relief when a former employee or competitor unlawfully acquires or discloses trade secrets. A TRO can prevent an individual or entity from using or disseminating sensitive business information while litigation is pending, protecting the economic value of proprietary data.
• Non-compete agreements: Many companies use TROs to stop former employees from joining competitors in violation of restrictive covenants. Courts evaluate whether the non-compete agreement is enforceable, balancing the employer’s interest in protecting its business with the employee’s right to earn a living.
• Trademark and copyright infringement: Companies frequently seek injunctions to prevent unauthorized use of their intellectual property, which can damage brand reputation and cause market confusion. A TRO ensures that infringing goods or services are removed from the market before further harm is done.
• Sale of property: Injunctions can stop the sale or transfer of property when ownership is contested or fraud is alleged. Jonathan Horne of Harris Beach explains that, without swift legal intervention, a disputed sale could irreversibly alter ownership rights, making recovery through damages inadequate.
• Constitutional rights cases: When government actions threaten constitutional rights, courts may issue TROs to prevent policies from taking effect while legal challenges are resolved. For example, courts have used injunctions to block executive orders related to immigration and voting rights pending further review.

Strategic Considerations

Seeking a TRO or Preliminary Injunction is a strategic decision that requires thorough preparation and careful planning. Plaintiffs must ensure they have sufficient evidence to justify the request, while defendants must be ready to respond effectively.

• Gathering evidence early: Courts rely on affidavits, contracts, and exhibits to make quick decisions. Litigants should compile documents, witness statements, and expert reports that substantiate their claims before filing for injunctive relief. Without compelling evidence, courts are unlikely to grant an emergency order.
• Considering arbitration clauses: Some agreements require disputes to be resolved in arbitration, complicating the process. Parties seeking emergency relief may need to petition a court for an injunction pending arbitration. It is crucial to review dispute resolution clauses in contracts before filing a TRO request.
• Deciding on ex parte relief: Courts are reluctant to issue orders without hearing from both sides unless there’s a compelling reason. In some cases, notifying the opposing party before obtaining a TRO could allow them to act in bad faith (e.g., moving funds, destroying evidence, etc.). However, proceeding ex parte increases judicial scrutiny and requires demonstrating an urgent need for relief.
• Being ready to post a bond: Many courts require plaintiffs to provide financial security to protect defendants from wrongful restraint. The amount of the bond depends on the potential losses the defendant may suffer due to the injunction. Plaintiffs should work with bonding companies in advance to ensure compliance with court requirements.

Defending Against a TRO

A defendant facing a TRO must act swiftly to challenge its validity and limit its impact. Courts provide opportunities to contest the order and present counterarguments. Some common key defenses include:

• Challenge the urgency: Argue that monetary damages are sufficient, undermining the need for emergency relief. If the alleged harm can be remedied through financial compensation, the court may dissolve the TRO.
• Attack the legal standard: Question whether the plaintiff truly has a strong case. If the request for injunctive relief relies on weak legal claims or speculative harm, defendants can argue that the plaintiff is unlikely to succeed on the merits. Pastore notes the importance of considering whether a question meets the legal standard.
• Request a higher bond: Increase the financial burden on the other side. If the TRO imposes significant costs on the defendant, courts may require the plaintiff to post a substantial bond, which could deter frivolous injunction requests.
• Negotiate alternative solutions: Sometimes, agreeing to temporary terms is better than fighting and taking the chance of losing. If the parties can agree on interim measures, they may avoid prolonged litigation while protecting their respective interests.

The Importance of a Well-Crafted Order

A TRO is only as good as its enforceability. Courts require TROs to detail exactly what actions are prohibited and who is bound by them. Failing to provide proper notice to all relevant parties can also weaken enforcement.

Final Thoughts

TROs and preliminary injunctions can be game-changers in litigation, but they require strategic thinking and meticulous preparation and, even with the best thinking and preparation, they simply are not commonly justified.

To learn more about this topic view Litigation Basics / TROs and Preliminary Injunctions. The quoted remarks referenced in this article were made either during this webinar or shortly thereafter during post-webinar interviews with the panelists. Readers may also be interested to read other articles about litigation.

This article was originally published here.

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