People often come to my office and ask questions about how they can prevent someone from doing something, or how to compel someone to do something through litigation. This is not an easy question to answer. Most often, litigation is geared towards monetary compensation, not compelling a person to act in accordance with a specific requirement. However, there are many circumstances in which an injunction can be obtained in order to compel a person or corporation to do something, or to prevent a person or corporation from doing something.
The most famous examples of a successful injunction is, perhaps, Brown versus Board of Education, in which the United States government obtained an injunction to force the integration of the public schools. Other contemporary examples would include preventing a person from stalking you (sometimes considered a domestic violence injunction) or forcing repairs on a construction project where there is a potential harm to public safety.
The requirements for injunction are simple to understand but often difficult to meet. There are four basic requirements. A plaintiff must show a likelihood of success on the merits, irreparable injury, that the balance of the equities tip in their favor, and that the public interest will be served by the requested injunction. Each one of them is discussed below.
1. The Likelihood of Success on the Merits.
This means that you must prove that it is likely that you will win the case. You do not have to prove that you will definitely win the case, just that it is likely that you will win the case. The problem with this requirement is that it often forces the plaintiff to put on evidence at an early stage of the case sometimes without the benefit of discovery. Doing this may, in fact, have the opposite impact of what was intended. In the process of seeking an injunction you may convince the judge that your case is not quite so strong. Accordingly, you could lose both the motion and the case in general. The case can be lost when the judge expresses doubt at the injunction hearing about the strength of your position on the merits. When this happens, opposing counsel will likely remind you, and the Judge about this, as often as possible. Accordingly, counsel should carefully analyze whether your client is really likely to succeed on an injunction motion before seeking one.
This is the requirement which often causes the most confusion. What type of injury is irreparable? The most common definition of “irreparable injury” is that, whatever the injury is, it cannot be compensated by monetary damages.
Examples of this would be to force repairs to be made in the building the name of public safety in order to prevent injury or to prevent a stalker from harassing you. These are things which could not be compensated in the form of money damages. Typical breach of contract cases are not eligible for this type of relief. The reason for this is that money damages may be able to compensate the non—breaching party.
3. The Balance of the Equities.
This means that fairness dictates that your client should prevail. In this part of the analysis the court will weigh the relative fairness of granting the relief requested and make a decision based, in part, on that criteria. This is one of the few areas of the law where fairness really counts for something.
4. Service of the public interest.
In ruling on a motion for an injunction, the courts will often analyze what is in the public interest as a whole. More often than not, it will be in the public interest to prevent one person from stalking another or to compel repairs in a building that is likely to cause harm to the general public if not repaired. The court is generally required to take into account how non-parties to the lawsuit will be affected by the requested injunction.
5. The Bond Requirement.
Although not specifically part of the prevailing test for obtaining an injunction, the Court often requires that the party requesting the injunction post a bond to protect damage to the other party in the event that it turns out that the injunction was wrongfully entered. Sometimes the bond requirement is so high that it makes obtaining an injunction untenable. This is an issue which must be carefully considered at the outset before seeking an injunction. After all, if you get an injunction, and then can’t afford to post a bond, what good is it?
The final consideration in requesting injunction is whether you will be able to prove your entitlement to one through competent evidence. Most injunction motions need to be verified; in other words, someone must swear to the truth of the facts contained in the motion. Therefore, in most cases, an evidentiary hearing will be required and witnesses will be forced to come to court and testify. Are your witnesses credible ? Will they be able to tell a coherent, cogent story ? This is an important factor in determining whether your client is entitled to an injunction since your client will ultimately have to come to court and explain him or herself to the judge.
In sum, it is easy to ask for an injunction. It is not so easy to actually get one.