Emergency Relief

AuthorPeter J. Glennon
Businesses know well that time and cash ow are two critical ingredients
to success. When a dispute arises between businesses that could affect these
issues or their core business, their business reputation and goodwill, or their
client base, the business’s survival and future is often determined by the
ability to maintain the status quo. Failing in that goal could have untold or
unimagined nancial consequences. As a result, it is critical that business
litigators possess a degree of “legal nimbleness” that can be exercised at a
moment’s notice in the defense of their clients’ business interests, particu-
larly through the use of emergency relief. This chapter provides litigators
an overview of obtaining emergency relief, specically preliminary injunc-
tions and temporary restraining orders in federal court.
Federal Rule of Civil Procedure 65 is the main basis for seeking emergency
relief in federal courts. It provides a mechanism for parties to maintain the
“status quo” until a controversy is resolved. The focus of this discussion is
based primarily on the Federal Rules of Civil Procedure and federal case
law. It is always necessary, and a good practice, to review all local rules and
procedures, including court rules and specic judge rules, prior to seeking
emergency relief.
Advocating for emergency relief on a client’s behalf may be the only oppor-
tunity to defend a client’s position and to maintain the status quo before
Emergency Relief
Peter J. Glennon
Nelson_BizTorts_20140514_15-35 Confirmation Pass.indd 47 8/12/14 10:25 AM
the business is seriously affected. In some situations, failing to obtain a pre-
liminary injunction to maintain the status quo could mean the difference
between continuing or failing in the marketplace.
The purpose of a preliminary injunction is to maintain the “status quo”
until the court renders a nal decision on the merits of a legal dispute. The
status quo has been dened as “the last peaceable uncontested status” before
the controversy arose.1 Occasionally, courts grant preliminary injunctions
to alter the status quo when it is necessary to require a party to perform
an action to avoid harm to the moving party. However, such an injunction
is only granted when an “unusual circumstance” exists and the merits of a
case overwhelmingly favor one side.2 A permanent injunction is not con-
sidered until the case concludes.
In comparison, a temporary restraining order (TRO) maintains the sta-
tus quo, but is enforceable only for a short period of time. A temporary
restraining order may only be in place until a full hearing can be held on a
motion for a preliminary injunction or for a maximum of “just a eeting
fourteen days.”
Signicantly, it can be ordered ex parte without notice and
can be based on an incomplete record. However, federal courts are reluctant
to grant temporary restraining orders ex parte.4
In the context of business torts, there are several common scenarios that
precipitate a preliminary injunction or a TRO. They are often considered
as a means to prevent misappropriation of trade secrets and unfair com-
petition, including disclosure of condential information, and to enforce
non-compete agreements in suits by a company against former employees
and their new employers to protect legitimate interests.
1. Stemple v. Board of Educ. of Prince’s County, 523 F.2d 893, 898 (4th Cir. 1980),
cert. denied, 450 U.S. 911 (1981).
2. See Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d 1149, 1154–55
(10th Cir. 2001).
3. Clearone Communs. v. Bowers, No. 11-4136, 2013 U.S. App. LEXIS 2489, at *6
(10th Cir. Feb. 5, 2013). See generally F. R. C. P. 65(b).
4. See generally Granny Goose Foods, Inc. v. Brotherhood of Teamsters, Local No. 70,
415 U.S. 423 (1976).
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