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Temporary Restraining Orders and Preliminary Injunctions Defined 2 Temporary Restraining Orders 9 and Preliminary Injunctions GREGORY J. SCANDAGLIA WILLIAM J. RYAN Scandaglia & Ryan Chicago The authors thank John B. Thornton and Bradley D. Hergott, associates at Scandaglia & Ryan, for their assistance in the preparation of this chapter. ©COPYRIGHT 2007 BY GREGORY J. SCANDAGLIA AND WILLIAM J. RYAN. 9 — 1 BUSINESS AND COMMERCIAL LITIGATION I. Introduction A. [9.1] Scope of Chapter B. Background 1. [9.2] Temporary Restraining Orders and Preliminary Injunctions Defined 2. Statutory Authority a. [9.3] Illinois b. [9.4] Federal 3. Strategic Purpose of a Temporary Restraining Order or Preliminary Injunction a. [9.5] In General b. [9.6] Preservation of Status Quo c. [9.7] Prevention of Occurrence of Wrong or Further Injury d. [9.8] Prevention of Destruction or Dissipation of Property C. [9.9] Differences Between Temporary Restraining Orders and Preliminary Injunctions D. [9.10] Bond Requirement E. Jurisdiction and Venue 1. [9.11] Subject Matter Jurisdiction 2. [9.12] Personal Jurisdiction 3. [9.13] Venue II. Temporary Restraining Orders A. [9.14] General Showing Needed To Obtain a Temporary Restraining Order B. Provisions Regarding Notice and Lack Thereof 1. [9.15] Temporary Restraining Orders Without Notice 2. Temporary Restraining Orders with Notice a. [9.16] Illinois b. [9.17] Federal c. [9.18] Sufficiency C. Elements or “Factors” To Be Established by the Verified Complaint 1. [9.19] The Four Basic Factors 2. [9.20] Ascertainable Claim for Relief 3. Likelihood of Success on the Merits a. [9.21] Illinois b. [9.22] Federal 4. [9.23] Irreparable Harm 5. [9.24] Inadequate Remedy at Law 6. Balancing of Hardships a. [9.25] Illinois b. [9.26] Federal 9 — 2 WWW.IICLE.COM TEMPORARY RESTRAINING ORDERS AND PRELIMINARY INJUNCTIONS 7. [9.27] Impact on Public Interest 8. [9.28] Pleading Requirements Relaxed When Statute Expressly Authorizes Injunctive Relief 9. [9.29] Enforceability of Contractually Stipulated Injunctions D. When Temporary Restraining Orders Are Unavailable 1. [9.30] Granting the Ultimate Relief 2. [9.31] Other Contexts in Which Temporary Restraining Orders Are Unavailable E. [9.32] Affirmative Defenses F. [9.33] Burden of Proof G. The Plaintiff’s Pleadings 1. Verified Complaint a. [9.34] All Facts Necessary To Support a Temporary Restraining Order Must Be Clearly Pled (1) [9.35] Ascertainable claim for relief (2) [9.36] Likelihood of success on the merits (3) [9.37] Irreparable harm (4) [9.38] Inadequate remedy at law or in equity b. [9.39] Prayer for Relief Must Be Specific c. [9.40] The Need for Verification 2. [9.41] Motion for Temporary Restraining Order and Summary of Plaintiff’s Filings H. The Defendant’s Pleadings 1. [9.42] Answer 2. [9.43] Summary of Defendant’s Filings I. The Temporary Restraining Order Hearing 1. [9.44] Temporary Restraining Order Without Notice 2. Temporary Restraining Order with Notice a. [9.45] Illinois b. [9.46] Federal 3. [9.47] Contested Facts and Merits of Case Not Decided at Hearing for Temporary Restraining Order J. Duration of the Temporary Restraining Order 1. [9.48] Temporary Restraining Order Entered Without Notice to Opposing Party 2. Temporary Restraining Order Entered with Notice to Opposing Party a. [9.49] Illinois b. [9.50] Federal K. The Bond Requirement 1. [9.51] Illinois 2. [9.52] Federal ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 9 — 3 BUSINESS AND COMMERCIAL LITIGATION L. Form of the Temporary Restraining Order 1. [9.53] Contents of the Temporary Restraining Order 2. [9.54] Persons Affected by the Order M. Motion To Dissolve Temporary Restraining Order 1. [9.55] Timing of Motion To Dissolve 2. [9.56] Grounds for Motion To Dissolve 3. [9.57] Effect on Temporary Restraining Order of Removal to Federal Court N. Appeals of Temporary Restraining Orders 1. [9.58] Illinois 2. [9.59] Federal 3. [9.60] Standard of Review O. Damages for Wrongfully Entered Temporary Restraining Orders 1. [9.61] Illinois 2. [9.62] Federal P. Temporary Restraining Order Summary — Checklists of Practical Considerations 1. [9.63] Checklist for Plaintiffs When Preparing the Pleadings 2. [9.64] Checklist for Plaintiffs at the Temporary Restraining Order Hearing and Beyond 3. [9.65] Checklist for Defendants When Preparing the Pleadings 4. [9.66] Checklist for Defendants at the Temporary Restraining Order Hearing and Beyond 5. [9.67] Checklist of General Temporary Restraining Order Considerations for Both Parties III. Preliminary Injunctions A. [9.68] General Showing Required To Obtain a Preliminary Injunction B. [9.69] Notice of Motion Is Required C. [9.70] Court Must Hold a Hearing Before Preliminary Injunction May Issue if Defendant Has Answered or Responded D. [9.71] Required Elements 1. [9.72] Ascertainable Claim for Relief 2. [9.73] Likelihood of Success on the Merits 3. [9.74] Irreparable Harm 4. [9.75] Inadequate Remedy at Law 5. [9.76] Balancing of Hardships 6. [9.77] Public Interest 7. [9.78] Pleading Requirements Relaxed When Statute Expressly Authorizes Injunctive Relief 8. [9.79] Enforceability of Contractually Stipulated Injunctions 9 — 4 WWW.IICLE.COM TEMPORARY RESTRAINING ORDERS AND PRELIMINARY INJUNCTIONS E. Preliminary Injunctions Are Not Available in Certain Contexts 1. [9.80] Courts Will Not Issue a Preliminary Injunction That Grants the Ultimate Relief 2. [9.81] The Constitutionality of Statutes Will Not Generally Be Considered at the Preliminary Injunction Stage 3. [9.82] Public Officials Will Not Generally Be Enjoined 4. [9.83] Criminal Activity Will Not Generally Be Enjoined 5. [9.84] A Court Will Not Enjoin Another Court 6. [9.85] Courts Will Not Issue Injunctions if Preempted by Federal Statute F. [9.86] Affirmative Defenses G. [9.87] The Standard of Proof Is Unclear H. Pleadings 1. Complaint a. [9.88] All Facts Necessary To Support a Preliminary Injunction Must Be Clearly Pled (1) [9.89] Ascertainable claim for relief (2) [9.90] Likelihood of success on the merits (3) [9.91] Irreparable harm (4) [9.92] Inadequate remedy at law or in equity b. [9.93] Pray for Specific Relief c. [9.94] Complaint Must Be Verified 2. [9.95] Motion for Preliminary Injunction 3. [9.96] Defensive Pleadings 4. [9.97] Injunctive Relief May Be Sought Against a Third Party Under Certain Circumstances I. [9.98] All Persons or Entities with Knowledge of an Injunction Are Bound by It J. [9.99] Duration K. [9.100] Bond L. [9.101] Order M. [9.102] Motion To Dissolve N. Appeal 1. [9.103] Stay Orders 2. [9.104] Preliminary Injunctions 3. [9.105] Standard of Review on Appeal Is Abuse of Discretion O. [9.106] Damages for Wrongful Entry of Preliminary Injunction P. Federal Practice 1. [9.107] Federal Rule of Civil Procedure 65 2. [9.108] The Supreme Court Has Not Articulated a Clear Standard 3. [9.109] The Seventh Circuit Uses a Sliding-Scale, Five-Part Test ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 9 — 5 BUSINESS AND COMMERCIAL LITIGATION 4. [9.110] Security Is Required 5. [9.111] Anyone with Knowledge of the Order Is Subject to an Injunction 6. Elements a. [9.112] The Legal Standards for a Temporary Restraining Order and a Preliminary Injunction Are Identical b. [9.113] The Two-Step Analysis (1) [9.114] Irreparable harm (2) [9.115] Inadequate remedy at law (3) [9.116] Likelihood of success on the merits and balancing of harms (4) [9.117] Impact on public interest c. [9.118] Persons Bound by the Order d. [9.119] Motion To Dissolve e. [9.120] Damages for Wrongfully Entered Injunctions f. [9.121] Appeals IV. [9.122] Any Person or Entity in Violation of an Injunction Order Is Subject to Punishment for Contempt of Court V. Statutory Remedies A. [9.123] Compelling or Staying Arbitration B. [9.124] No Injunctions or Restraining Orders for Labor Disputes C. [9.125] Trademarks May Be Protected with Injunctions D. [9.126] Trade Secrets May Be Protected with Injunctions E. [9.127] Statutory Injunction Actions Brought by the State F. [9.128] Statutory Injunction Actions Brought by Individuals VI. Appendix — Sample Forms A. [9.129] Emergency Motion for Temporary Restraining Order and Preliminary Injunction B. [9.130] Order for Temporary Restraining Order with Notice C. [9.131] Order for Temporary Restraining Order Without Notice D. [9.132] Order for Preliminary Injunction E. [9.133] Injunction Bond F. [9.134] Motion To Dissolve Temporary Restraining Order or Preliminary Injunction 9 — 6 WWW.IICLE.COM TEMPORARY RESTRAINING ORDERS AND PRELIMINARY INJUNCTIONS §9.2 I. INTRODUCTION A. [9.1] Scope of Chapter This chapter discusses temporary restraining orders (TROs) and preliminary injunctions as they arise in the context of business disputes. Consistent with this purpose, the chapter focuses on the use of these equitable remedies in business and commercial litigation and, when possible, cites caselaw from business and commercial litigation cases. Occasionally, however, when the leading case or cases on a particular issue do not involve business and commercial litigation, cases from other areas of the law may, of necessity, be cited. For ease of reference, the cases cited in §§9.14 – 9.67 below pertain to TROs unless expressly so noted; likewise, the cases cited in §§9.68 – 9.121 below pertain to preliminary injunctions, although they may also pertain to TROs. As the standards for obtaining relief for TROs and preliminary injunctions are in many cases identical, the practitioner wishing for a fuller understanding of a particular issue may wish to consult the appropriate sections of both parts of the chapter (i.e., both §§9.19 – 9.29 and §§9.71 – 9.79, when looking for required elements). The primary focus of this chapter, as with most IICLE chapters, is Illinois state law.
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