December 22, 2020 Practice Points

Injunctive Relief 101: Immediate Remedies When Money Does Not Cut It

When money is not enough to compensate your client for wrongdoings, consider injunctive relief to protect your client’s proprietary interests.

By Anna Limoges

Typically, attorneys are brought in to wrong a right. Clients’ damages in most cases can be compensated with money. However, certain information—such as trade secrets, financial information, and other personal data—are at risk in any business. For instance, if an employee leaves and attempts to use the proprietary information, there is an immediate need for relief.

If these circumstances arise, take action and proceed with requesting the court to issue an immediate temporary restraining order (TRO) and preliminary injunction. Later on, that injunction may be made into a permanent one to continue protecting your client’s business in the future. If the individual does not follow the order, your client can ask the court that the individual be punished for being in contempt of court.

Injunctive relief can be in the form of the court ordering another person or business to do something or to stop doing something. In our pretend situation, where an employee has taken valuable information, a court can order that the former employee immediately stop using and return all confidential information and/or trade secrets.

Injunctions can come in three forms: TRO; preliminary injunction, and permanent injunction. A TRO is short-term protection until the court can look closer at the injury and other factors and issue something stricter. In most jurisdictions, a temporary restraining order can last up anywhere from 10–14 days and the matter can be taken up without notice. 

A preliminary injunction is also a temporary order—but it requires a court proceeding and (usually) notice to the other party. The court will (generally) look to the following factors and weigh them to determine whether to issue a preliminary injunction:

  1. the threat of irreparable harm to plaintiffs;
  2. the state of the balance between this harm and the injury that granting the temporary restraining order will inflict on defendants;
  3. the probability of plaintiff’s success on the merits; and
  4. the public interest.  

For a permanent injunction, the plaintiff must show actual success before the other factors (essentially the same as above) are considered. 

When money is not enough to compensate your client for wrongdoings, consider injunctive relief to protect your client’s proprietary interests. Injunctive relief allows temporary intervention prior to final judgment on the matter. 

Entity:
Topic:

Anna Limoges

-

Anna Limoges is an attorney with Goosmann Law Firm in Sioux Falls, South Dakota.


Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).