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Preliminary Injunctions, Temporary Restraining Ordersand Declaratory JudgmentsJerry BrownJanuary 25, 2012

Preliminary Injunctions, TROs and DeclaratoryJudgments Requests for emergency or non-monetaryrelief:-Preliminary Injunctions-Temporary Restraining Orders-Declaratory Judgments2

Preliminary Injunctions, TROs and DeclaratoryJudgments Often, a petitioner will request all of them.-Why? Differences between them, strategicadvantages of each.3

Preliminary Injunctions and TROs under Illinois Law 735 ILCS 5/11-102 (Preliminary Injunctions)735 ILCS 5/11-103 (TROs)4

Preliminary Injunctions and TROs FRCP 65(a) – (Preliminary Injunctions) FRCP 65(b) – (Temporary RestrainingOrders)5

Purpose of Preliminary Injunctions and TROs Preserve the “Status Quo.” The “Status Quo” is the “last actual,peaceable, uncontested status precedingthe pending controversy.” (Black's LawDictionary 1410 (6th ed. 1990)).6

Mandatory and Prohibitory Orders Mandatory orders require that parties performcertain specified acts.Prohibitory order require that parties refrain fromperforming certain specified acts.Mandatory orders are automatically stayed whenan appeal is pending. Prohibitory orders arenot.7

Mandatory and Prohibitory Orders, continuedIn some cases it may be unclear whetheran order is mandatory or prohibitory.8

Elements for Preliminary Injunctions and TROs Clearly ascertainable right in need of protectionIrreparable harmLack of adequate remedy at lawLikelihood of success on the meritsBalancing of hardshipsCourts will consider public policy if relevant.9

Differences Between Preliminary Injunctions and TROs TROs can be issued on an ex-parte basis; Preliminaryinjunctions cannot.TROs initial duration is limited (10 days in state court; 14days in federal court) (TROs however can be extendedbeyond initial term).Preliminary injunctions not subject to preset limit induration.TROs typically followed by preliminary injunction.10

Reasons for Choosing Between Preliminary Injunctionsand TROs If you cannot get timely notice to opposing party, TROmay be best choice.If you fear that if given notice, the opposing party mayaccelerate course of conduct to moot controversy andcause irreparable harm before being bound by courtorder, TRO may be best choice.If it is feasible to give notice, preliminary injunction maybe best choice.11

Reasons for Choosing Between Preliminary Injunctionsand TROs Preliminary injunction has no presetduration. No need to move for extension of order,unlike TRO. Courts disfavor ex-parte proceedings.12

Preliminary Injunctions and TROs A trial court has substantial discretion in decidingwhether to grant or deny a preliminary injunction or TROand that determination will not be disturbed on appealabsent an abuse of discretion.There is no right to a jury trial for an injunction or TRO.13

Bond Requirement Under Illinois law, the court, in itsdiscretion, may require the posting of abond before entering a preliminaryinjunction or a TRO. 735 ILCS 5/11-103 Under federal law, bond is required forpreliminary injunctions and TROs. FRCP65(c).14

Bond requirement, continued Claims on bond by a party wrongfully enjoined limited tobond amount.If a party disagrees with the bond amount, it can appeal.The standard on review is abuse of discretion by the trialcourt.A party who fails to raise issue of bond during hearingbefore trial court waives it.15

Bond Requirement, continued Clients may not wish to bear expense ofappealing trial court bond decision. At hearing, be prepared to vigorouslyargue issue of bond.16

Appeal of Preliminary Injunctions and TROs Adverse rulings on preliminary injunctionsor TROs are subject to interlocutoryappeal. Illinois law – Illinois Supreme Court Rule307(a), (d). Federal law – 28 USC § 129217

Notice Requirements for Preliminary Injunctions andTROs Illinois Supreme Court Rule 11 Hand delivery U.S. Mail Commercial courier Facsimile E-mail not explicitly authorized18

Notice Requirements for Preliminary Injunctions andTROs Federal lawFRCP 5Hand deliveryU.S. MailElectronic means, if other party has consented in writingAny other means to which the other party has consentedin writing19

Notice Requirements for Preliminary Injunctions andTROs Federal TROs anticipate oral notice (FRCP 65(b)(1))Other methods of notice may run risk of technical noncompliance, but may more effectively achieve purpose ofnotice provision.Consider party receiving notice of preliminary injunctionby e-mail without consent. Is the party likely to disregardthe notice in hope of arguing later that notice wasdefective?Check local rules.20

What is an Irreparable Harm? Party cannot be adequately compensatedin damages or when damages cannot bemeasured with any certainty. Violations of constitutional rights, howeverbrief, usually qualify as irreparable harm.21

Lack of Adequate Remedy at Law Money damages Other legal remedies Ejectment Replevin Mandamus Prohibition Habeas corpus22

Balance of HardshipsA court will compare the hardship to thepetitioner if injunctive relief is denied to thehardship to be suffered by the respondentif injunctive relief is granted.23

Public PolicyThe court will examine whether relevantpublic policies are implicated in thegranting or denial of injunctive relief.24

Likelihood of Success on the MeritsTo show a likelihood of success on the merits, so as tosupport a request for a preliminary injunction or a TRO, aparty does not have to meet the same burden of proofthat is required at the final hearing.Rather, a plaintiff need only raise a fair question as tothe existence of the right which he or she claims andlead the court to believe that he or she will probably beentitled to the relief requested if the proof sustains his orher allegations.25

Assuming Relief is Granted Pay close attention to the language of the order – makesure that the order is clear, specific and capable ofenforcement.Ambiguity, over breadth and impossibility of performanceor compliance can be fatal to efforts to enforce injunctiveorders.People ex rel. City of Chicago v. Le Mirage, Inc.2011 WL 5600509 (1st Dist. 2011).26

Enforcement of Order Contempt Rule to show cause Civil contempt/criminal contempt Contempt sanctions Collateral Bar Rule27

Declaratory Judgments Illinois law (735 ILCS 5/2-701)Federal law (FRCP 57)Purpose of declaratory judgmentTo allow the court to address a controversy a step earlierthan normal once a dispute has developed, but beforethe parties take steps that would expose them to claimsfor damages or other relief.28

Declaratory Judgments A declaratory judgment action consideredneither a legal action nor an equitableaction.29

Declaratory Judgments Elements to be pleaded: (1) tangible legal interest; (2) facts indicating that the defendant'sconduct is opposed to those interests; and (3) an ongoing actual controversy betweenthe parties which is likely to be preventedor redressed by court action.30

Declaratory JudgmentsThe decision to grant or deny declaratoryrelief is within the sound discretion of thetrial court, and the trial court'sdetermination will not be reversed absentproof of an abuse of discretion.31

Declaratory Judgments The Federal Declaratory Judgment Act was enacted toprovide an alternative to the remedy of injunctive relief,to be used to challenge the constitutionality of statecriminal statutes in cases where injunctive relief wouldbe unavailable. Under the Declaratory Judgment Act,declaratory relief may be available even if an injunctionis not allowed.32

Declaratory Judgments Why would a party seek a declaratory judgment insteadof a preliminary injunction or a TRO?In some cases, it may be easier to establish jurisdiction(for preliminary injunctions and TROs challengingstatutes, a court may conclude that there is no standinguntil the statute has already been violated).No need to show “irreparable harm.”No bond requirement.No balancing of hardships.33

Declaratory Judgments Declaratory judgments not enforceable bycontempt power; Declaratory judgment does not, by itslanguage, directly prohibit or compelconduct, and may therefore fail topreserve status quo.34

Notice Requirements for Preliminary Injunctions and TROs Federal TROs anticipate oral notice (FRCP 65(b)(1)) Other methods of notice may run risk of technical non- compliance, but may more effectively achieve purpose of notice provision. Consider party receiving notice of preliminary injunction by e-mail without consent.