INJUNCTIONS – A Practical Guide To One Of The Law’s Most Powerful Tools

Very few people fully appreciate the powerful and flexible remedy offered by an injunction. Injunctions are extraordinary, both in terms of their timing and their effectiveness. Certain injunctions are issued with a rapidity otherwise unknown in the American legal system. Injunctions frequently have consequences so sweeping that they effectively shut down operating businesses or otherwise affect dramatically the rights of the parties involved in an irreversible manner – even when the requested injunction is refused. Two illustrative examples of the power of injunctions which have recently been seared into the American consciousness are the injunction against further ballot counting in Florida following the 2001 presidential election and the injunction ordering Napster, the Internet music swapping service, to cease and desist from operating.

Simply put, injunction proceedings are high stakes poker. If a party plays its first hand wrong, the game may be over before another hand is dealt. This article will explore the remedies available in an injunction proceeding, the timing implications involved in either seeking or defending an injunction, and the particular hallmarks incident to various kinds of injunctions.

The Remedies Available Through An Injunction

The only limitation on remedies available through an injunction is the creativity of counsel or of the judge hearing the case. Generally speaking, there are two kinds of relief available through an injunction: prohibitory and mandatory. A prohibitory injunction is the most common form of injunction, and directs a party to refrain from acting in a certain manner. Examples of a prohibitory injunction are cease and desist orders (entered against Napster), or an order stopping a bulldozer prior to the razing of an historic building. Injunctions can also be mandatory, however, in which case the court directs a party to take affirmative action. Examples of this kind of injunction were seen in the school integration and busing cases prevalent several decades ago. Whether prohibitory or mandatory, the only limit on the power of the trial judge (other than the role of appeals courts) is that the remedy selected be reasonably suited to abate the threatened harm and that the court be in a position to enforce its own order and assess a party’s compliance.

The Timing Implications Involved In Seeking Or Defending An Injunction

Similar to the type of remedy, courts and parties have significant flexibility regarding timing, so long as the party seeking an injunction is not guilty of unreasonable delay in requesting the court’s assistance. What constitutes “unreasonable” delay will vary from case to case. There are three kinds of injunction requests, which vary by the timing of the request. The first is called an ex parte injunction (also sometimes popularly known as a temporary restraining order, or TRO. The technical name for such an injunction in the Pennsylvania Rules of Civil Procedure is “special relief”). The other two kinds of injunctions are preliminary injunctions and permanent injunctions.

Ex Parte Injunctions

Ex parte injunctions are appropriate only when the threatened harm is so immediate and so severe that even giving the other party notice of the application for the injunction and an opportunity to be heard in opposition is not practical. Ex parte literally means one-sided. A party seeking the entry of an ex parte order (without the involvement of or even notification to the other party most directly affected) has an exceedingly heavy burden in convincing a judge the emergency warrants such extreme action. By definition, there will not be even minimal due process afforded to the affected party; therefore, the courts’ rules require certain safeguards to protect it. For example, in state court in Pennsylvania, an interim order granted on an ex parte basis may not remain in effect for more than five days without the commencement of a hearing. Furthermore, the party seeking such an injunction also has the obligation to post a monetary bond which the judge deems sufficient to compensate the affected party if it is later determined that the ex parte injunction should not have been granted.

During an ex parte injunction hearing, there is frequently no actual hearing. Although a judge is free to insist upon a full evidentiary presentation, he or she usually permits these applications to be presented in chambers. The presentation of such an application represents one of the only instances in our legal system where one party’s attorney has the opportunity to sit down with the judge and render an entirely one-sided version of the matter before the court. Although the lawyer is acting as an advocate for his client, he or she must be scrupulously honest and avoid exaggerating the circumstances. Engaging in any form of overreach throughout this onesided process can have disastrous effects on both counsel and client, once the adversely-affected party is represented and has an opportunity to tell its side of the story. For obvious reasons, judges react very poorly to being sandbagged.

There is no requirement that a party seeking injunctive relief make a request for ex parte relief. Instead, because judges are very reluctant to grant such requests, and given the heavy burden involved in all actions for injunctions, it’s wise for a client not to risk its credibility before the court by asking for ex parte injunctive relief unless it is truly necessary. Counsel will advise requesting ex parte relief only where circumstances are very favorable.

Preliminary Injunctions

A preliminary injunction represents the most common form of injunctive relief requested. A preliminary injunction differs from an ex parte injunction in that the affected party is given notice that the application has been filed and has an opportunity to appear and be heard at a formal hearing where both parties may present evidence. Unlike ex parte injunction practice, a preliminary injunction almost always involves an evidentiary presentation in open court. Although not a full-blown trial, these hearings are critically important and set the stage for any litigation to come. In many cases, these hearings – and the judge’s reaction to them – constitute the entirety of the litigation.

More often than not, preliminary injunction hearings are conducted without the benefit of a significant amount of time to prepare and without the benefit of discovery, through which documents and testimony from the other side and its witnesses can be obtained prior to the hearing. Therefore, unless the party seeking the injunction is certain it fully understands the case and is completely prepared to present its case at hearing, it is a good idea to attempt to secure a court order to allow for limited discovery in preparation for the hearing to be conducted on an expedited basis, sometimes the very day before the hearing.

At the hearing, the party seeking the injunction has the burden of convincing the judge of a number of things. (Injunction requests are presented to a judge sitting without a jury. Therefore, the more counsel knows about the judge, including his or her political and ideological leanings, the better). Among the elements which must be proven by the party seeking the injunction are: (1) it has no adequate remedy other than an injunction (such as money damages); (2) truly irreparable harm will occur in the absence of an injunction; (3) it is more likely than not that the moving party will prevail on the underlying merits when the matter ultimately goes to trial; (4) the benefit to the party seeking the injunction outweighs the burden of the party opposed to the injunction; and (5) the moving party’s right to the relief sought is clear.

Although these are somewhat flexible – even vague – standards, the judge must be satisfied that all of these elements have been satisfactorily proven prior to granting an injunction. Needless to say, it is easier for the defendant to argue that one or more of these five elements has not been satisfactorily proven than it is for the moving party’s lawyer to argue that all five have been proven. The law sets such exacting standards because the consequences of an injunction can be so dramatic.

The Role of the Injunction Bond

The purpose of the injunction bond is to protect the party against whom the injunction has been entered in the event it is later determined that the injunction should not have been granted. Assuming the judge is persuaded by the proof at the hearing and is willing to grant an injunction, a determination as to the appropriate amount for the injunction bond must be made. The party seeking the injunction will predictably argue that its proof has been so strong that only a nominal bond should be required. Conversely, the adversary will argue that only a significant bond will be adequate to protect his or her client. The judge must balance these competing arguments. Particularly in the event that the judge had any reservation regarding the strength of the moving party’s case, the setting of the bond is another manner in which he or she may protect the interests of the party to be enjoined. There are circumstances where the bond is so sizable that the moving party, which has successfully demonstrated its entitlement to an injunction, will not or cannot satisfy the bonding requirement. In such a case the injunction will not become effective: No bond, no injunction. Thus, it is possible that a party can lose on the merits at the hearing, but never actually be enjoined due to its adversary’s failure to post the required bond.

The Role of the Appellate Court

Most court orders are not subject to an appeal until the case is over in all respects. Orders affecting injunctions, however, are exceptions to this rule. A party dissatisfied with a judge’s decision regarding an injunction – whether that decision grants, denies, modifies, dissolves or otherwise affects an injunction – has an immediate right to appeal that judge’s ruling in both the state or the federal court systems. However, although an appeal is available, it will usually prove extremely difficult to overturn the trial judge’s decision because of the manner in which appellate courts review decisions concerning injunctions. Furthermore, in all but the rarest of occasions, the injunction will remain in place throughout the appeal process, which can itself be lengthy.

Essentially, the court system recognizes that decisions involving injunctions are necessarily made in a somewhat subjective manner and are also made under sometimes severe time constraints. Appellate courts therefore defer to trial judges’ findings and generally believe that the judge who heard the evidence first-hand is in the best position to evaluate the case. As a result, the standard on appeal is very narrow: The trial judge’s decision will be upheld if there is any evidence in the record to support the decision. It doesn’t matter whether the appellate judges would have reached the same decision or not. The thinking is that the trial court should exercise its discretion in the first instance and, if there is more than one plausible interpretation of the evidence, the trial court’s acceptance of any particular interpretation cannot be an abuse of that discretion.

Permanent Injunctions

There is no requirement that a party seeking permanent injunctive relief first request either ex parte or preliminary relief. A permanent injunction may be sought as part of the full trial on the merits in an action, regardless of the outcome of prior proceedings in the case. In reality, however, many injunction cases do not proceed this far because, as previously indicated, the earlier proceedings (the granting or refusal of an ex parte or preliminary injunction) frequently alter the landscape so significantly that further proceedings are never pursued.

Sometimes, however, a permanent injunction is sought following previous proceedings. A permanent injunction may be sought, for example, where a party has been dissatisfied with the outcome of a preliminary injunction proceeding, but remains adamant about securing its rights. With the chances of a successful appeal so low, either the winner or the loser at the preliminary injunction level may elect to press on with discovery and attempt to convince the trial judge to change his or her decision after hearing all of the evidence. (Naturally, the judge’s first impression is always hard to overcome.) As with any order affecting an injunction, a dissatisfied party may appeal from any order entered in consideration of a request for permanent injunction. With a fully developed trial record, the appellate court will be somewhat less deferential to the trial court’s conclusion, yet a successful appeal remains difficult.

Injunctions are particularly powerful and flexible tools, which can have dramatic consequences to the parties involved. A party seeking an injunction or attempting to defend against one is well-advised to secure counsel familiar with the intricacies of injunction practice.

This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.