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CHAPTER 11: SELECTED CIVIL PROCEDURES - Table of Contents

11.1 - Other Parties and Class Action Suits11.2 - Injunctions

11.2 INJUNCTIONS

Although many civil cases involve efforts to collect money damages from an alleged wrongdoer, in some cases the primary (or sole) effort may instead be to obtain a court order requiring the defendant either to do something or refrain from doing something. Such an order in this context is referred to as an "injunction." For example, a company may claim that a competitor has improperly obtained and is using its trade secrets, such as a confidential customer list; it would seek an injunction forbidding the competitor to continue any such use and requiring it to return any confidential documents.

Procedurally, there are three different kinds of injunctions. The plaintiff may request a "temporary restraining order" (or "TRO") at the very outset of the case, even before the defendant may even know about the case or has yet had an opportunity to respond. Such a TRO usually requires a showing of something akin to an actual emergency, whereby some type of irreparable harm will occur even from a very short delay in granting the requested order. Usually the judge who receives the TRO request will require the plaintiff to either provide advance notice to the defendant or to provide a compelling reason why such notice should not be required. If the judge acts without any notice to or participation by the defendant, the judge is said to be acting "ex parte" or out of the presence of the other party. An ex parte TRO will remain in force for only a brief period, with the defendant being provided an opportunity to contest it.

A person who wishes to turn a temporary restraining order into a permanent restraining order must give the party against whom the order is sought an opportunity to be heard in court. Only after such a hearing, and after being satisfied that a permanent order is appropriate will a judge issue a permanent restraining order. Temporary and permanent restraining orders are often used in domestic violence cases and other situations in which one person feels threatened by another.

If the plaintiff wants some kind of interim relief before the final trial in the case but on less of an emergency basis than a TRO, she can ask for a "preliminary injunction." Such a request will usually require a pre-trial hearing with testimony by witnesses to preliminarily establish some wrongful conduct by the defendant and some genuine need for interim relief. Because providing any such relief before the final resolution of the case is so contrary to how courts usually work, the party requesting a preliminary injunction must meet an especially high standard: she must convince the judge not only that she will be irreparably harmed if the interim relief is not granted but also that she has a reasonable likelihood of winning the case at the ultimate trial. Moreover, if such a preliminary injunction is granted, the recipient must post a bond to protect the other party from any damages caused by that injunction (such as lost sales revenues) if the court concludes at the final trial that it should not have been issued.

Finally, if the court issues an injunction after a trial as part of the final resolution of the case, such an injunction is termed a "permanent injunction."

Injunctions may be issued against private individuals, corporations and other entities, and governmental units (although a federal court cannot constitutionally issue an injunction against a state government).

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