The Winners and Losers of a Temporary Restraining Order

If you have ever been involved in litigation, you know from experience that it is a marathon, not a sprint. However, sometimes, certain issues cannot wait until you finally have your proverbial “day in court.” That is where temporary restraining orders (“TROs”) come in handy. TROs (and their counterparts, preliminary injunctions) are designed to provide instant legal protection while a case is working its way through the litigation process (such as written and oral discovery, motion practice, and ultimately preparing for trial). Importantly, TROs are specific to equitable causes of action where a plaintiff is seeking a court order compelling the defendant to perform a certain act or refrain from a certain act as opposed to merely seeking monetary damages. TROs serve as a drastic remedy used to prevent “immediate and irreparable injury, loss, or damage” as set forth under 735 ILCS 5/11-101. In other words, the TRO works to preserve the “status quo” while your case is pending.

Illinois courts will grant a TRO for a brief duration of time in exceptional circumstances. Before a party becomes a “winner” of a TRO, they must demonstrate to the court that they have (1) a protected right in need of protection; (2) irreparable injury in the absence of an injunction; (3) no adequate remedy at law; and (4) a likelihood of success on the merits of the case. Courts are motivated to grant TROs to provide swift legal intervention in order to maintain the status quo until a hearing can be held and to prioritize the protection and welfare of applicants.

TROs are often sought in cases involving former employees using a company’s intellectual property for the benefit of a competing business or in cases where one party is engaging in conduct that could have exponential damage to the other party if not immediately stopped. If a TRO is granted by the court, the “winner” obtains a court order enjoining the other party from engaging in certain conduct.

These court orders, while essential for providing immediate relief, can often result in significant consequences for the individuals against whom they are filed. The “losers” of a TRO face a host of challenges, including restricted access to financial gain. Using the example above, the losing party (the former employee) may be enjoined from contacting company clients or employees until the case is resolved.

So what do the “losers” on a TRO get? There are often two lifelines that courts provide to the losing party on a TRO: (1) a bond, and (2) an expedited track to an evidentiary hearing.

Remember, a TRO is granted before the parties get to the true merits of the case. In granting a TRO, the court is deploying an extreme remedy without necessarily having all the facts. Accordingly, to balance the scales, the losing party can request that the court order the prevailing party to post a bond, or financial assurance, equivalent to the estimated damages the enjoined party will face from the court-ordered restrictions. For example, the losing party could face the loss of an economic deal as a result of the TRO. If this can be relatively substantiated, the court may order the prevailing party to post a bond to cover the losing party’s damages if it is later determined that the TRO was wrongfully obtained.

Similarly, in cases where a TRO has been granted, courts generally allow for expedited evidentiary hearings. Expedited hearings play a crucial role in TROs by enabling the parties to fast-track portions of their case to formal resolution.

At Lavelle Law, Ltd., our attorneys are experienced in obtaining and defending against TROs and preliminary injunctions. If you are in a situation that requires an injunction, please contact attorney Nataly Kaiser at nkaiser@lavellelaw.com or 847-705-7555.