Statutory Requirements for Entry of a Preliminary Injunction

To obtain a preliminary injunction, a plaintiff must show the following five statutory elements by a preponderance of the evidence. Courts may implicitly counterbalance a stronger showing on one element despite a weaker showing on another. However, an absence of any showing on any one element should prevent entry of the preliminary injunction.

The five elements are that:

1. The plaintiff possesses a clearly ascertainable right in need of protection;
2. There is no adequate remedy at law;
3. The threat of immediate and irreparable harm necessitates the issuance of a preliminary injunction to protect the status quo;
4. The plaintiff has a likelihood of success on the merits of the case; and
5. The burden on the plaintiff if relief is denied is greater than the burden on the defendant if the relief is granted (balance the equities).

The Five Elements Applied

1. Plaintiff Possesses a Clearly Ascertainable Right in Need of Protection. The right to be protected should be alleged on the face of the plaintiff’s verified complaint as the basis of the underlying litigation. In a business context, examples of such rights often sought to be protected with preliminary injunction requests include enforcement of covenants not to compete or unfair competition, such as alleged trade secret misappropriation.

2. Plaintiff has No Adequate Remedy at Law. No adequate remedy at law means that money cannot fully redress the rights which the plaintiff seeks to protect. When a court cannot give a financial remedy in the form of a money damage judgment, but a remedy is due, the court uses its “equity jurisdiction.” This is an old practice that implements the notion that just because a problem cannot be solved with money, does not mean the court cannot supply a remedy. This is where a preliminary (or in some cases, a permanent) injunction might be the only non-financial remedy available for the court to provide, at least until the lawyers for the parties discover the facts and evidence in the normal course of a lawsuit and then the court can hold a full evidentiary hearing or trial on the merits.

   An exception to the ‘no adequate remedy at law” rule that does permit a court to issue an injunction even if there is a possibility of a money damage judgment, applies when a particular statute specifically authorizes the court to issue an injunction as a specific remedy for a violation of the conduct which that statute is intended to prevent. Classic examples of these kinds of lawsuits and statutes occur when plaintiffs like the Federal Trade Commission, State of Illinois or private parties seek injunctions to stop fraudulent or deceptive trade practices, and seek restitution in the form of money.

3. Immediate Threat of Irreparable Harm. This element has two prongs: the immediacy of harm, and the irreparable nature of the harm.

   1. Immediacy of Harm. The immediacy prong of the harm analysis is where timing can be so important, as we discuss here. The immediacy of harm directly implicates the extraordinary nature of injunctive relief and further illustrates why if parties want an injunction to preserve the status quo, courts generally require plaintiffs to show that money is insufficient to provide an adequate remedy. If the harm is not immediate and/or money can solve the problem, it is unlikely a court will issue an injunction. Generally, imminence of harm is used to determine immediacy. In other words, the threatened harm is immediate in the sense that if the court were to wait until after a full hearing or trial on the merits to provide a remedy, the harm is imminent, i.e., it will already have occurred by the time the case is ready for full hearing or trial.
   2. Irreparable Harm. Proof of irreparable harm goes hand-in-glove with Element 2 above, by demonstrating that the injured party has no adequate money damage remedy; that if there is a money remedy, the extent of the harm cannot be calculated or quantified with reasonable certainty; or the harm may be continuing.

4. Plaintiff has a Likelihood of Success on the Merits. Illinois State courts and Federal Courts in Illinois can differ in their approach to applying and determining this factor. If there is no chance a plaintiff can prevail, either based on law or the facts, no injunction can issues regardless whether suit was commenced in state or federal court. To simplify the distinction between state and federal treatment of this element, Illinois state courts tend to equate likelihood of success with a better than negligible chance of success. The Seventh Circuit Court of Appeal employs a sliding scale that says the proof required by a plaintiff to show likelihood of success goes down as the harm the plaintiff might suffer goes up (versus harm to the defendant if the injunction issues).

5. Balancing of the Equities. This element requires the court to weigh the harm to the defendant if the preliminary injunction issues against the benefit to the plaintiff. The goal is to minimize harm or hardship to both parties. In some cases, the facts are more clear than in others and make this balancing simple or unnecessary. For example, if a defendant’s conduct was intentionally harmful, or malicious, there is usually no balancing of equities. Also, in some cases, harm to the public must be considered and a weighed or balanced. In private business disputes, the public interest may never be implicated by entry of any injunction.

The emergency and injunctive relief attorneys at DiTommaso Lubin 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.