The 9th Circuit’s refusal to set aside a preliminary injunction of President Trump’s immigration ban made headlines recently. The Court refused to set aside a preliminary injunction issued by the District Court since it determined that the Government had not shown the likelihood of success on the merits of its appeal; or that failure to enter a stay would cause irreparable injury.
Thus, the injunction order obtained by the states of Washington and Minnesota has proved to be an effective tool so far. Could injunctive relief likewise be an effective tool in your litigation? Relief is obtained from most lawsuits in months, if not years. Immediate relief through issuance of a preliminary injunction can speed the process, reducing recovery risk for the Plaintiff, and increasing the likelihood of both recovery and settlement. At the same time, absent immediate injunctive relief, some lawsuits would be a pointless exercise.
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. Mandatory injunctions direct a party to take affirmative action. The remedy selected, whether mandatory or prohibitory must be reasonably suited to abate the threatened harm.
Under FRCP 65, a litigant may obtain a preliminary injunction or restraining order where:
- the moving party will suffer irreparable injury if relief is not granted;
- there is a substantial likelihood the moving party will succeed on the merits;
- in balancing the equities, the non-moving party will not be harmed more than the moving party is helped; and
- granting injunctive relief is in the public interest.
In order to obtain a preliminary injunction, the movant is required to give security in an amount that the Court considers proper to pay the costs and damages of the party later found to have been wrongfully enjoined. FRCP 65(c).
What kinds of irreparable harm can warrant granting a preliminary injunction? Normally if the anticipated loss can be redressed with a monetary award at the close of a lawsuit, injunctions are not appropriate. Some examples of injunctive relief obtained for our clients include:
- Freezing funds embezzled by a faithless employee from a Tennessee employer who fled to Kentucky and deposited the funds in a Kentucky bank.
- Enjoining the sale of timber from mortgaged property.
- Enforcing non-compete clauses in employment agreements.
Injunctive relief is not just for executive orders. Where the required showing can be made, preliminary injunctions may provide swift justice to a plaintiff and avoid irreparable injury that may be sustained from delay resulting from lengthy litigation.
1 February 9, 2017 Order, State of Washington, State of Minnesota v. Donald J. Trump, Pres., United States Court of Appeals for the 9th Cir., D.C. No. 2:17-cv-00141.
2McNeilus Truck & Mfg., Inc. v. Ohio, 1998 U.S. App. LEXIS 3736, *9 (6th Cir. Feb. 27, 1998); Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 399 (6th Cir. 1997); Golden v. Kelsey-Hayes Co., 73 F.3d 648, 653 (6th Cir. 1996); Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1380 (6th Cir. 1995).