If you are involved in a business dispute, resolving the issue through traditional court litigation may not always provide the best solution. That lost time could harm your business or reputation beyond repair. One possible solution is to seek a temporary restraining order (TRO) and preliminary injunction. For over 27 years, DeBlasio & Gower LLC have guided businesses and their owners throughout Chicago and surrounding Illinois communities to secure TROs and injunctions for their clients. Contact us at (630) 560-1123 to consult with us about your business dispute.
Temporary Restraining Orders
A temporary restraining order (TR0) is a form of injunctive relief that a person, business or government agency when starting a lawsuit. If granted by the court, a TRO works by requiring the other party to either do something or refrain from doing something for a specified period. If a TRO is obtained without notice to the other party, then Illinois law limits a TRO to 10 days in duration, with one 10 day extension. 735 ILCS 5/11-101. If advance notice is given, Illinois law generally does not limit the duration of the TRO, but typically will allow it to remain in place until a specified date such as a hearing date for a preliminary injunction, which can be like a mini-trial. In sum, TROs are like injunctions in that they protect the plaintiff’s rights for a period of time until the court can hold a more extensive evidentiary hearing on the issues.
If a complaint seeks a TRO, it must be verified (under oath). Complaints seeking TRO that are based only “information and belief” without verified facts will almost always be rejected by the court. The typical practice is to file (a) a verified complaint; (b) a motion for a temporary restraining order; (c) a memorandum of law in support of the motion; and (d) a notice of motion.
In commercial litigation, TROs are used to preserve the status quo, to prevent the occurrence of an injury, or to prevent the dissipation or destruction of property. TROs also are used to protect confidential information and intellectual property. For example, a court may enter an injunction against former company employees from competing against their former employer, and may even go so far as to enjoin their new employer even though it is not a party to the original covenant not to compete if necessary to prevent a breach of the covenant (such as by the disclosure of the former employer’s confidential information or trade secrets).
Like a TRO, a preliminary or permanent injunction involves the court requiring that a specific action be done or not done. Injunctions, like temporary restraining orders, are considered an equitable remedy. This remedy differs from a legal remedy, which involves money damages to compensate you for a financial loss. With an equitable remedy, the party seeking relief believes that money would not be a suitable substitute for the harm incurred.
Whether equitable or legal relief is warranted can be subjective, but equitable relief may be available for circumstances that involve:
- Intellectual property theft
- Publishing secret information
- Competitive actions
- Theft or embezzlement
- Harmful transactions
- Denied access to integral aspects of the business
Of course, the above list is not exhaustive, and there may be many other bases upon which to obtain injunctive relief.
To pursue equitable relief, and thus an injunction, the injured party has to show that there’s no adequate monetary remedy that would provide fair compensation. They must also show that the harm suffered would be irreparable through financial means without an injunction.
Requirements to Issue an Injunction
Temporary restraining orders, preliminary injunctions, and permanent injunctions are powerful and sometimes devastating weapons. These extraordinary remedies are granted only if the applicant can satisfy the stringent standards articulated by the Illinois Supreme Court and the appellate courts.
Generally, under Illinois law, a plaintiff must present evidence in support of four factors before a court will issue a TRO or other form of injunction: (1) the plaintiff possesses a clearly ascertainable right in need of protection, (2) there is a likelihood that the plaintiff will succeed on the merits, (3) the plaintiff will suffer irreparable harm if an injunction does not issue, and (4) the plaintiff has no adequate remedy at law. Mohanty v. St. John Heart Clinic, S.C., 225 Ill.2d 52 (2006). A fifth factor frequently considered by trial courts involves balancing the equities or the relative hardships. Travelport, LP v. American Airlines, Inc., 2011 IL App (1st) 111761, 958 N.E.2d 1075,
- A clearly ascertainable right. A plaintiff must have an enforceable right under a contract or applicable law that needs enforcement. Inquiry into this factor generally leads to many various areas of substantive law, including covenants not to compete, confidentiality agreements, trade secrets, the validity of municipal ordinances, and the validity of municipal actions. This is also known as the “ascertainable claim for relief” factor or the “protectable interest” factor.
- The plaintiff must be likely to win at trial. To prove that they are likely to succeed, they must present compelling evidence that makes it logical for the court to conclude that their claim is valid and would prevail at trial after a full showing of evidence from both sides.
- The harm must be irreparable. The plaintiff must demonstrate that they will suffer irreparable harm if an injunction is not entered. Again, this generally requires showing that money damages would not be adequate to remedy the type of harm that would be sustained if an injunction is not issued. The harm that the plaintiff seeks to enjoin must be expected with reasonable certainty and not merely possible. “Irreparable harm” does not necessarily mean injury that is beyond repair. Sometimes “irreparable harm” means harm of a continuing nature.
- No adequate remedy at law. An adequate remedy at law is a remedy that is clear and complete and that would provide the same practical and efficient resolution as an injunction would provide. Sometimes, “adequate remedy at law” is a misnomer because an interlocutory injunction should not be issued if there is a legal or equitable remedy that will make the plaintiff whole after trial. Injunctive relief is not proper when money damages are an adequate remedy. Money damages constitute adequate compensation absent a showing that it would be impossible, rather than merely complicated, to ascertain the amount of damages. On the other hand, money damages may not be an adequate remedy if the potential loss of future revenues is incapable of adequate computation or if damages are difficult to quantify at the time of hearing. When a judgment for money damages would be worthless because of the financial condition of the defendant, the remedy may be inadequate.
- “Balancing of the equities.” A fifth factor a court will likely address is called “balancing of the equities” to analyze who would suffer most from either granting an injunction or failing to grant an injunction. Specifically, the court will decide if the defendant will be unduly harmed by granting an injunction or if the plaintiff would suffer excessively if the injunction were not granted.
Temporary Restraining Orders Versus Injunctions
A common question is whether injunctions and restraining orders are the same things. Both serve to help prevent harm until a permanent injunction can be issued. The most notable difference is that a TRO is generally limited to a short period of time, like ten days. It is possible to extend the timeframe of a TRO to the date of an evidentiary hearing. Once the evidence is heard, the court may issue a preliminary injunction for a much longer period of time until a full trial on the merits can be held.
Obtaining a Temporary Restraining Order or Injunction
At DeBlasio & Gower LLC, our experienced legal team is able to serve clients in federal and state courts throughout the Chicago area and surrounding suburbs as well as courts across the entire state of Illinois to seek injunctive relief. If you are in a situation that requires an injunction, contact us at (630) 560-1123. Together, we will outline a strategy to support your next move.