Pre-Merits Hearing and Injunctions, Timing and Notice

As the name suggests, preliminary injunctive relief is provisional. Its function is to preserve the status quo pending a full hearing on the merits. An injunction can require a person or a business to do something (e.g., return a stolen digital copy of a secret formula) or stop doing something (e.g., stopping a former salesman from selling a competing product in violation of a non-competition agreement, or hiring away former colleagues in violation of a non-solicitation agreement with a former employer or company once owned by the violator.)

Generally, there are ultimately three forms of injunctive relief, two of which can be entered before a full hearing on the merits. They are (1) a temporary restraining order (“TRO”), (2) preliminary injunction, and after a merits hearing, (3) a permanent injunction.

Pre-merits hearings and injunctions are extraordinary remedies. The Illinois Code of Civil Procedure authorizes two forms injunctive relief before a merits hearing: (a) TRO; and (b) a preliminary injunction. (Sometimes pre-merits hearing injunctions are called “interlocutory” injunctions.)

Duration distinguishes a TRO from a preliminary injunction. TRO’s last several days, maybe as long as 10 days, while the parties prepare for a hearing to determine if the court will extend the TRO beyond its initial duration and convert or merge the TRO into a preliminary injunction. A preliminary injunction can then remain in place until dissolved, but can last until and during a trial on the merits, i.e., the main trial in the underlying case in which the injunction was sought.

Time is the worst enemy of any party who wishes to obtain a preliminary injunction, because time is perhaps the key element for establishing grounds for an injunction. While there are other factors a party must establish and the court must consider, the imminence of harm to the party seeking a preliminary injunction is often what puts teeth into the request for the preliminary inunction. Thus, undue delay in seeking such relief is the usually best way to dilute or destroy grounds for a court to issue a preliminary injunction, even if all the other factors are satisfied.

Usually, requests for a preliminary injunction come with the filing of the complaint, or very shortly thereafter. In other words, the problem causing the request for a preliminary injunction is usually all or most of the reason for the filing of the lawsuit itself. This is what is meant by “preliminary relief pending a hearing on the merits.” The entire underlying case, i.e., the merits of the allegations of the complaint, will be resolved after the court grants a preliminary injunction. Accordingly, if a complaint alleges a problem for which a request for preliminary injunction does not accompany the complaint or is filed soon thereafter, the lapse of too much time may make it impossible to convince a court to issue any injunction, because the implicit message to the court is the problem is simply not sufficiently extraordinary to issue any preliminary relief before a full hearing on the merits.

The manner of notice chosen by the party seeking the preliminary injunction may speak volumes to the court about the seriousness of the problem and the true imminence of harm. Preliminary injunctions may issue without notice to the adverse party, but only in the most extraordinary of circumstances. This means if the court issues a preliminary injunction without notice, the person or business who is being told to do something or stop doing something, will have had no opportunity to oppose the request for the injunction, and will not be notified of its entry until after the court has heard the arguments of the party seeking the injunction, and after the court has already issued the injunction itself to be served on the people or parties who will be bound by the injunction.

To meet this extraordinary circumstance threshold, the party seeking a preliminary injunction without notice must provide the court with specific facts alleged in a verified (sworn) complaint and/or by an affidavit that accompanies the verified complaint, that immediate and irreparable injury, loss or damage will result before the plaintiff can or should give the adverse party notice of the request for the injunction.

The plaintiff seeking the injunction must make a threshold showing to the court that in the short time it might take to give actual notice to the defendant, that the defendant will do so much harm that the court would be unable to render justice in that moment, i.e., before the defendant learns of the injunction proceedings.

The court will then decide whether to hear the plaintiff’s injunction request without notice, or the court will require notice to the adverse party. Depending on the circumstances, sometimes the court will allow oral notice.

Our discussion of the details and mechanics of a hearing for issuance of a preliminary injunction is here.

The emergency and injunctive relief attorneys at Lubin Austermuehle have over thirty years of experience defending and prosecuting injunction claims in the federal and state Chancery courts in Illinois in a wide variety of business dispute lawsuits. We are knowledgeable regarding the changes and complexities of injunction law and prepared to devote substantial time to the matter on an emergency basis. We are committed to fighting for our clients' rights in injunction and emergency business relief cases at both the trial and appellate court levels. We have successfully defended or prosecuted scores of injunctions and then won on appeal in the expedited appeals that often follow injunction decisions. Conveniently located in Chicago and Elmhurst, Illinois, we have successfully litigated business separation, accounting and breach of fiduciary duty case for clients all over the Chicago area. To schedule a consultation with one of our skilled attorneys, you can contact us online or give us a call at 630-333-0333.