Injunctions Justice Richard M. Mosk Associate Justice, California Court of Appeal Los Angeles, California, USA

INTRODUCTION

When I first began practicing law with what was then considered a large Los Angeles law firm, I worked on many entertainment (now called intellectual property) and commercial cases. In those cases, one party or another sought to prevent such activities as ‘‘unfair competition’’ or ‘‘unfair business practices;’’ the wrongful use of confidential information; the exhibition of motion pictures or sale of goods in violation of copyright, trademark, or contractual rights; or other tortious acts; or to enforce a personal service contract. At that time, most applications in a State court in Los Angeles County (in the Central District) for a preliminary or temporary restraining order went to just one judge, who presided over what was called the ‘‘Writs and Receivers Department.’’ That one judge could, in effect, by issuing or not issuing injunctive relief, have a tremendous effect upon a business, an employee, a development, an exhibition or a production, and even the public welfare. Often, the preliminary injunction was so significant and had such consequences that the trial itself would be rendered meaningless. I thought that this one judge, with this power over such a large metropolitan area, was the most powerful judge in the country. I only refer to this experience in my early career to emphasize how significant injunctive relief can be. My brief overview of injunctions is intended to be in conjunction with the presentations of other panelists on the subject of remedies and to induce further discussion on the subject.

GENERAL PRINCIPLES

In the common law, injunctive relief is a permanent remedy, often in connection with torts or wrongful acts. Such injunctive relief may, however, be a remedy for breaches of certain contracts when are not adequate—for example, violations of confidentiality agreements or coven- 185 186 Contemporary Issues in International Arbitration and Mediation ants not to compete; breaches of agreements involving intellectual property such as licenses; and breaches of unique personal services contracts. Statutes may provide for injunctive relief as a remedy for a violation—for example, unfair competition, trademark, copyright, patent, and anti-trust statutes. Permanent injunctions may be an appropriate remedy in arbitration. Injunctive relief is also one form of interim relief or a provisional remedy and may also be available in connection with arbitration—either by an arbitrator or by a court. There are different types of injunctions. A preventive injunction is to stop a discrete event or act. A mandatory injunction is to compel a certain act. Injunctions may be used by private parties or the state to prevent violations of certain statutes. These include injunctions that are probably not relevant here. For example, there are regulatory injunctions by which a court uses a general prohibition in an injunction to regulate a party’s behavior over a long period of time—for example, certain anti-trust injunctions—and a structural decree by which the court uses the injunction as a device for altering or reorganizing some institutional arrangement—for example, desegregation decrees. In common law jurisdictions, injunctions are classified as an . Equity developed in the English Court of Chancery to provide a remedy when there was no available in the law courts. In the United States, there are no courts of equity; law and equity are united in one forum. Injunctions can also be used to prevent a multiplicity of actions, to protect priority of jurisdiction, or to maintain the status quo. In addition, in order to obtain injunctive relief, it is necessary that the dispute be ripe and that without such relief, irreparable injury would result. An injunction may be denied if it is not capable of being judicially supervised. In addition, the court has discretion whether or not to grant injunctive relief—an application for an injunction is an appeal to the ‘‘Chancellor’s conscience.’’ Thus, the court considers various equitable principles. These include the concept that in order to obtain relief, a party must have ‘‘clean hands.’’ Another is that the court must balance the equities—that is, in connection with whether to grant injunctive relief, weigh the benefits to the applicant against the burdens to the one against whom relief is sought. There are other factors to consider in connection with injunctive relief. Injunctive relief is not available if the acts in question can no longer be prevented by the court; if the challenged course of conduct has been abandoned before entry of the decree; if the injunction may be contrary to the public interest or public policy; if the injunction would violate some legal right, such as being a prior restraint on free speech or an infringement of labor activities; if the injunction would ignore comity or lack of