When you file a lawsuit, you’re usually hoping for two things: money to compensate for the harm you’ve suffered, and an order to stop your adversary from continuing to harm you. But lawsuits can take 12-18 months to resolve. What if you can’t wait that long? What if the harm your adversary is causing will be so bad in 12-18 months’ time that the lawsuit just wouldn’t be worth it?
At these times, you might need to consider an emergency injunction. These are court orders that stop the other side’s harmful behavior while the lawsuit is still going on.1Rarely, an injunction can require the other side to do something alleviate bad behavior, but this type of “mandatory” injunction is rare.” The idea is to put things back to how they were temporarily until the court can sort things out permanently at the end of the case. There are different flavors of emergency injunctions whose nomenclature can vary from jurisdiction to jurisdiction: preliminary injunctions, temporary injunctions, temporary restraining orders, and so forth.
Emergency injunctions are subject to a major limitation. Not only do you have to prove you’re likely (but not necessarily certain) to win, but you have to prove that the harm you’re suffering is irreparable and immediate. “Irreparable” means that money won’t fix the problem. “Immediate” means you can’t wait. Intellectual-property cases often present instances of such irreparable harm. If a trade secret is passed on to you competitor, then it will be impossible to make the competitor “forget” the information or to estimate how money your competitor wrongfully gained and you lost because of it. Or if a competitor starts using your trademark, it will be impossible to un-confuse consumers or to know how many sales you lost because of the confusion.
Emergency injunctions are meant to be temporary, but practically speaking, the outcome of an emergency injunction often determines the outcome of the cases. This is because, if the case really is an emergency, neither side will be able to wait until the end of the case. The plaintiff’s harm will be so acute after 12-18 months that it will usually have to abandon that line of business. Similarly, the delay to the defendant will usually mean it will have missed its marketing window, ability to make money, and so forth.
For this reason, motions for emergency injunctions are hard-fought, expensive and intense. They can feel like compressing the entire lawsuit into a matter of weeks.
For more about emergency injunctions, Rick wrote a blog post all about them in the context of a trademark lawsuit over a popular wine-adjacent beverage.
|↑1||Rarely, an injunction can require the other side to do something alleviate bad behavior, but this type of “mandatory” injunction is rare.”|