Many people think that litigation is only a reactive process: a harm occurs, a complaint is filed, information is shared between the parties (“discovery”), depositions are conducted, a jury trial ensues until a verdict is reached, and after 18 months of litigation, voilà, justice.
Although it can feel like running a marathon, this process provides the parties sufficient time for preparation and enables sound decision-making on behalf of the court. But, as the saying goes, justice delayed can be justice denied.
Temporary restraining orders (“TROs”) and preliminary injunctions provide a procedural sprint equivalent, which businesses may rely on to swiftly and prophylactically address future harms in which recovering damages in 18 months may be insufficient to remedy the harm. The most likely injunction scenario for many readers is when their business’ intellectual property is compromised and more immediate steps are needed.
But first, what is an injunction?
An injunction is a court order that requires a party to continue, or cease, particular conduct. If a party fails to comply with the order, the court may impose a fine or a criminal sanction.
Injunctions often begin as a TRO, which can last up to 14 days (which may be extended once for a like time) in federal and Ohio courts. If certain procedural steps are followed, TROs may even be granted without notice to the opposing party.
Unlike TROs, preliminary injunctions cannot be granted without notice to the opposing party. They may be issued for longer periods, such as while the case is pending.
Below are four tips to consider before requesting an injunction:
1. Focus your requested relief.
Resist the temptation to overreach. Instead, keep the requested relief reasonable and narrowly tailored to the facts of the case. Courts generally are not eager to restrict other businesses in their activities, so work with your lawyer to identify what you really need.
2. Be prepared to pay a bond.
There’s no such thing as a free lunch. TROs and preliminary injunctions, even if granted, are not binding until a bond is paid by the requesting party. The court sets the bond amount to cover any damages sustained by the defendant if the court ultimately decides that the injunction should not have been granted.
This step can be more complicated than it sounds. Posting the bond in cash may tie up important resources for months. Parties often use a bonding company, which will generally include a 10 percent non-refundable fee on top of the bond. Therefore, it will be important for your lawyer to argue for the smallest possible bond.
3. Know your court.
Different courts and judges handle injunctions very differently, both in terms of the process and in terms of how receptive they are to granting such extraordinary relief. Just as your business’ customers and clients are all different, so are courts and judges. Your lawyer should be sharing this intelligence with you as you consider your decisions.
4. Be prepared to litigate the merits of your case.
The need for an injunction arises in a time of crisis, but getting an injunction involves filing a lawsuit that is a potential long-term commitment. In other words, don’t pick a fight you are not ready to see through. Among other considerations, your team needs to be reminded that their communications will likely be discoverable and not let their guard down as they create a paper trail that may be read by a judge or jury in the future.
Certainly no business wants to have to learn more about this fast-moving and potentially expensive legal process, but it is important to have a basic understanding of this powerful legal tool.
Barnes & Thornburg LLP is a large, full-service law firm that seeks to take a more entrepreneurial and cost-effective approach both to client service and its own business.