In some situations, a party needs the court to act quickly to prevent something bad from happening or continuing. But since lawsuits take awhile, American courts have procedures for litigants that need immediate (albeit temporary) relief.
Courts can issue Temporary Restraining Orders (often called “TROs”), usually within hours after a party requests them. TROs often only last a short period of time, just long enough for the parties to have a more formal argument about whether the order should remain in effect (as a “preliminary injunction”) for the duration of the litigation.
Why should you continue to read this post about temporary restraining orders?
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A court has ordered you to keep reading this post until it decides whether you need to read a post about preliminary injunctions
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You are involved in litigation in which a temporary restraining order has been issued and you want to know if that is unusual for a commercial dispute
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You’ve read other posts about temporary restraining orders and now you consider yourself an expert on the genre
Attorneys Request TROs Where Money Is an Insufficient Remedy
Courts often refuse to grant TROs in situations where they are not appropriate. Instead, in New York State courts, CPLR 6313(a) says that they are only granted where “immediate and irreparable injury, loss or damages will result unless the defendant is restrained before a hearing can be had…”. Federal Rule of Civil Procedure 65 sets forth a similar standard.
This generally refers to situations where, without an order, a party will suffer a harm that cannot be addressed by a money judgment. So, for example, in a case in which a purchaser of assets stopped paying the amount due under an asset purchase agreement, the seller could not get a temporary restraining order barring their use of the assets. This is because the seller could eventually be compensated by a money judgment for the amount due under the contract. But a court may grant a TRO to prevent the government from withholding money from a business prior to an appeals process where the withholding would bankrupt the company. This is because a money judgment would not adequately compensate the company after it has gone out of business.
TROs frequently arise in disputes arising from the use of confidential material or intellectual property. This may be because it is difficult to quantify the damage arising from improper use of confidential material and so a money judgment may not properly compensate a plaintiff.
Attorneys Request TROs Without Notifying the Opposition
American courts often issue TROs ex parte, which autocorrect insists is actually “ex paste.” Ex parte means that a lawyer may make the request without notifying the opposition. Courts permit TRO applications to be ex parte because a plaintiff may be concerned that, if the defendant knew that it may be subject to a TRO soon, the order could be moot because the defendant may engage in the prohibited conduct before the order formally bars her from doing so.
Still, TROs normally require the plaintiff to notify the defendant of the TRO and give them an opportunity to object. A TRO will usually only last a short period of time so that the defendant may promptly explain why it is inappropriate before it is extended further as part of a preliminary injunction.
A request for a TRO requires a lot of work. It usually requires a memorandum of law, explaining why the court should issue it. In federal court, the memorandum needs to explain:
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Why the plaintiff would suffer an immediate, irreparable injury without the TRO;
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Why the plaintiff is substantially likely to prevail on the merits of the underlying litigation;
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Why the TRO will not result in substantial harm to the defendant; and
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Why the TRO is in the public interest
The TRO application may also require a sworn statement from at least one witness that can attest to the facts cited in the memorandum. And the TRO application may also require other formal documents that specify the terms of the order the party requests.
Parties That Get a TRO May Need to Post a Bond
When a court grants a TRO, the court may require the party that requested it to post a “bond” or an “undertaking” pursuant to rules like CPLR 6313(c) or Federal Rule of Civil Procedure 65(c).
This means that a party must either set aside money to compensate the defendant for the costs it will incur because of the order or pay an insurance company to establish a bond that will reimburse the defendant for those costs in the event the court decides that its order was improper.