MEMBER OF THE NATIONAL TRIAL LAWYERS
Injunctions, temporary restraining orders, and preliminary injunctions
Sometimes a company or person may believe they are being harmed by something another party is doing; for example, where a former employee, or a party from which a business was purchased, is breaching a covenant-not-to-compete, a party to a contract is being induced by a third-party to breach the contract, or a former employee is disclosing trade secrets or other confidential information. Sometimes a party may believe they are being harmed by another party’s refusal to do something; for example, where a party refuses to remove a building erected in violation of a restrictive covenant or that encroaches on another property or take down an obstruction placed across a roadway that is the party’s only access to their property.
In such cases, the party may seek an injunction. An injunction that forces a party to stop doing something is referred to as a “prohibitory injunction,” while one that requires a party to do something is referred to as a “mandatory injunction.” Mandatory injunctions are generally disfavored and are allowed only where the case is urgent and the right is clear.
A party that files a suit seeking an injunction may obtain relief pending final resolution of the case in the form of a temporary restraining order (commonly referred to as a “TRO”) and/or a preliminary injunction.
A TRO is an emergency measure obtained prior to a hearing on a preliminary injunction that serves the same function as a preliminary injunction that is typically issued without notice to the other party. To obtain a TRO, the party must show, as required by Rule 65(b) of the NC Rules of Civil Procedure, that it will suffer immediate and irreparable injury before the other party or their attorney can be heard in opposition and reasons why notice to the other party should not be required. A TRO is effective only until a hearing can be held on a preliminary injunction, which generally must occur within ten days following the issuance of the TRO.
To obtain a preliminary injunction, in addition to showing that they will suffer irreparable injury, a party must also show a “likelihood of success on the merits” of their case. In deciding whether to issue a preliminary injunction, the judge must weigh the potential harm to the party seeking the injunction if injunctive relief is not allowed against the potential harm to the other party if injunctive relief is allowed. A preliminary injunction will be denied where there is a serious question as to the other party’s right to engage in the activity and to forbid that party from doing so would cause them greater damage than the other party would sustain from the continuance of the activity while the litigation is pending.
In cases where a TRO or a preliminary injunction is obtained but is later dissolved, the enjoined party may suffer harm and can be awarded money damages. Thus, a party that obtains either a TRO or preliminary injunction must provide security, in an amount determined by the judge, to cover such damages except where the party is either the State, or of any county, municipality, officer, or agency thereof, or a spouse in a suit relating to child support, alimony, child custody, or divorce.