What is an Injunction

An injunction is an order from a court that orders a defendant to either take a specific action, or refrain from taking the specific action, as described in the order.

Forms of Injunction

Injunctions come in three basic forms:

  • Preliminary Injunctions: A preliminary injunction or interlocutory injunction applies to a defendant while court proceedings are pending. The purpose of the injunction is to preserve the status quo while the litigation proceeds -- that is, to prevent the defendant from taking action that is harmful to the plaintiff or the plaintiff's interest before litigation can be concluded.

  • Temporary Restraining Orders: A temporary restraining order (TRO) may be issued by a court prior to a full hearing on a petition for an injunction, in order to prevent harm to the petitioner prior to a full hearing regarding whether or not the injunction should be issued. These orders are normally very limited in their duration, so as to minimize any harm or inconvenience to the restrained party before that party has a chance to present its arguments and evidence to the court.

  • Permanent Injunctions: A permanent injunction is entered at the conclusion of a lawsuit, and is binding on the defendant either indefinitely or for a shorter period as described in the court's order.

Effect of an Injunction

Once issued, an injunction binds the named defendant, along with the defendant's agents and employees. The injunction will ordinarily be:

  • Prohibitory: A prohibitory injunction directs the restrained party to refrain from taking specified actions. One form of prohibitory injunction is a cease and desist order.

  • Mandatory: A mandatory injunction directs the responding party to take a specified action or actions. Such an injunction may be in the form of an order for specific performance.

A party who violates an injunction risks being held in contempt of court.

Penalties for being found in contempt of court will often include monetary penalties, a requirement to pay the other party's legal fees and costs, and in some cases an order of incarceration until the restrained party complies with the court's order. In some cases a party may be found in criminal contempt of court for violating an injunction in which case, in addition to other sanctions, the party can potentially be sentenced to jail as a punishment for the violation.

When Can You Get an Injunction

Different rules apply for the issuance of preliminary injunctions, those issued before the final decision of a case, and permanent injunctions issued at the conclusion of litigation. In most cases it is difficult to obtain a preliminary injunction.

Preliminary Injunctions

A preliminary injunction is issued before the final outcome of a lawsuit is decided by the court. In an ordinary civil lawsuit, preliminary injunctions are difficult to obtain. They are normally available only if the party seeking the injunction proves:

  1. Likelihood of Victory: The party seeking the injunction has a substantial likelihood of prevailing in the underlying lawsuit;

  2. Balance of Harms: After consideration of the relative harm to the parties that will result from granting or denying the requested injunction, the injunction remains warranted; and

  3. Irreparable Harm: The party seeking the injunction will suffer irreparable harm if the injunction is not issued.

A court may also consider the impact of the issuance of an injunction upon the interests of the public.

Ex Parte Injunctions

An ex parte order is issued without notice to the other party, meaning that the party seeking an injunction brings a motion before the court asking that the court issue an order without first giving the other party an opportunity to appear and oppose the petition.

When a court finds a basis to issue an ex parte injunction, the court will normally schedule a hearing at which the respondent is able to respond to and contest the issuance of the injunction. If the petition is unopposed, or if the court finds after the hearing that the issuance of an injunction is warranted, the court may continue the injunction either as previously entered or in modified form.

Irreparable Harm

To prove irreparable harm, a party must ordinarily demonstrate that money damages will not be adequate compensation for the injury that is likely to follow if a preliminary injunction is not issued. Sometimes the party that seeks a preliminary injunction will be ordered to post a bond to indemnify the restrained party in the event that the lawsuit against that party is unsuccessful.

When considering a petition for a preliminary injunction, a court will examine the harm that the petitioner alleges is likely to result if the injunction is not granted. Examples of cases in which an injunction might be ordered include:

  • Trade Secrets - A former employee has taken secret company documents, and the employer wants to bar the employee from making them public or sharing them with a competitor.

  • Real Estate - A property owner may want to restrain a neighbor or developer from engaging in construction activity across a disputed properly line, or that will materially affect the use and enjoyment of the adjacent property.

  • Historic Preservation - A historic properties commission may try to bar a developer from demolishing a protected historic building.

  • Non-Solicitation Agreements - A company may ask a court to prohibit a person or business from trying to lure away its customers or employees, based upon a contract under which the person or company agreed to refrain from doing so.

Permanent Injunctions

At the conclusion of the lawsuit, a party may request a permanent injunction. If granted, the court may order the respondent party to comply with the injunction indefinitely, for a fixed period of time, or until further order of the court.

Although in most cases a party seeking an injunction will also request money damages, it is possible to prosecute a lawsuit in which the sole remedy requested is an injunction.

Injunctions and the First Amendment

Due to the strong protections extended to speech rights by the First Amendment, it is difficult to obtain a preliminary injunction that restricts the speech rights of a person or other entity.

An attempt to restrict the exercise of speech rights before a statement is made or a speech act (such as a public protest) occurs is deemed a prior restraint, and a heavy presumption exists against its constitutionality. When an injunction is issued that affects speech rights, it should burden no more speech than necessary to achieve its goals.

Once a plaintiff prevails in a lawsuit, the issuance of a permanent injunction is less controversial. For example, if a plaintiff proves that a defendant has uttered or published defamatory statements, a court may be willing to enjoin the defendant from continuing to make those statements or order that the defendant to remove the statements from websites.

However, even after a successful lawsuit, an injunction that affects a defendant's First Amendment rights should be no more broad than is necessary to achieve its objectives.

Injunctions for Domestic Law Matters

Among the most common injunctions entered in the nation's courts are those that arise out of domestic relationships:

  • Status Quo Orders: A party to a divorce, action for legal separation, or custody case seeks an order that restricts the other party from engaging in specified acts, such as hiding, squandering or giving away marital assets, relocating the domicile of the children, or engaging in other actions that may affect the outcome of a divorce or custody case. When issued, these orders are often mutual, meaning that they equally restrict both parties; and

  • Personal Protection Orders: People who have been injured by domestic violence, are subject to a pattern of harassment or stalking behavior, or are under a credible threat of violence by a present or former member of their household, may qualify for an order that prohibits the continuation of the threatening behavior and imposes other restrictions on the person who is committing the acts to help ensure the petitioner's safety.

Copyright © 2016 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 7, 2018.