The Journal of The DuPage County Bar Association

Back Issues > Vol. 13 (2000-01)

The Law’s Atomic Bomb: Preliminary Injunctive Relief
By Aaron H. Reinke

Preliminary injunctive relief has been referred to as the "law’s atomic bomb" and, like the explosive force of uncontrolled fission, the preliminary injunction, though provisional, is sudden and tremendously powerful. The strength of preliminary injunctive relief lies in its ability to pause the pending controversy, preserving the status quo until a full hearing on the merits. However, the provisional nature of the preliminary injunction creates the risk of serious injury to the enjoined party by preventing them from exercising their rights until the court fully determines the case.1 Indeed, the issuance of preliminary injunctive relief may still have been be proper even if the defendant eventually prevails on the merits of the case.2 To mitigate the risk to the defendant, the court will carefully analyze the plaintiff’s need for preliminary injunctive relief and may impose a bond requirement to cover potential damages. This article will explore the "dizzying diversity of formulations" for the entry of preliminary injunctive relief and reduce them to a useful format for the practitioner.3

The Illinois Code of Civil Procedure provides for only two types of injunctive relief that can be obtained before a hearing on the merits of a case: the temporary restraining order and the preliminary injunction.4 Legal commentators have remarked that "[i]n far too many cases the distinction between a temporary restraining order, a preliminary injunction, and a permanent injunction becomes blurred during the proceedings."5 Further confusion results from the variety of terms used for preliminary injunctive relief, such as "temporary injunctions" and "interlocutory injunctions."

The crucial distinction between temporary restraining orders and preliminary injunctions is their duration. A temporary restraining order is the most extraordinary remedy and exists for only a limited time, usually only a few days.6 To survive longer, a temporary restraining order must either be extended or merged with a preliminary injunction.7 The preliminary injunction is also an extraordinary remedy, but not- withstanding any limitation in the order itself, a preliminary injunction will continue until dissolved or until the case is decided on the merits. In some situations, the preliminary injunction may survive three to five years.8

It is essential that preliminary injunctive relief be sought promptly, as the passage of time invariably frustrates the argument for and the effectiveness of injunctive relief. Preliminary injunctive relief is typically requested in, or shortly after, the complaint is filed. A preliminary injunction may be issued without notice in the most extraordinary of circumstances.9 To meet the "extraordinary circumstances" threshold, it must clearly appear "from specific facts shown by the verified complaint or by affidavit accompanying the same, that immediate and irreparable injury, loss or damage will result to the plaintiff before notice can be served and a hearing had thereon."10 A plaintiff must therefore show that in the short time it takes to afford notice, the defendant will destroy the subject matter of the litigation or take other measures that would prevent the court from dealing justly and effectively with the issues involved in the litigation.11 However, courts recognize that petitioners need prompt relief and are flexible regarding notice requirements. For example, when written notice is not practicable, oral notice is sufficient.12

A hearing on issuance of a preliminary injunction will consist of legal arguments as to whether the elements of preliminary injunctive relief have been met. If the verified responsive pleading creates issues of material fact, the court should hold an evidentiary hearing to resolve those issues.13 If the defendant has not yet responded, it is inappropriate for the court to hold a hearing.14 However, if the defendant fails to file a timely response, all of the plaintiff’s allegations are deemed admitted and the preliminary injunction may be issued solely on the complaint.15 Even if an evidentiary hearing is conducted, the record is far more limited than if a full hearing on the merits were held. All equitable defenses are available, but affirmative defenses are not specifically considered, except in determining the likelihood of success on the merits.16

Courts are reluctant to issue preliminary injunctive relief because it requires considerable judicial supervision because of the "social bias against interference with private ordering and a fear of encouraging" frivolous litigation.17 The purpose of the preliminary injunctive relief is not to decide controverted rights or facts or punish wrongdoing, but to preserve the status quo until a final hearing is held on the merits of the case.18 Status quo is traditionally defined as "the last actual, peaceable, uncontested status which preceded the pending controversy."19

In many cases, the status quo refers to the situation that existed at the last moment before the controversy surfaced.20 In Duval v. Severson, two stockholders filed suit against corporate officers over a salary dispute arising out of a preincorporation agreement.21 The First District Appellate Court held that the status quo to be protected was that which existed before the board meeting at which the dispute "surfaced," rather than when the payment of the disputed salaries actually began.22 Courts also use the status quo to pause the current conflict between the parties. In People ex. rel. Edgar v. Miller, the Appellate Court froze the defendants’ bank accounts as an "effective way of stopping violations" of various securities regulations.23

Mechanically, preliminary injunctive orders must be (1) narrowly tailored to preserve the status quo and (2) limited to the scope of the relief requested in the complaint. Drafters should include items such as: the court’s findings as to each of the elements of preliminary injunctive relief, a recitation of which acts are to be restrained, the reasons for granting the injunction, the date and time of issuance, and when applicable, the reasons behind any waiver of notice or hearing.24

The analysis for the issuance of preliminary injunctive relief has been expressed through a wide variety of terms and formulations. Courts will generally accept a stronger showing on one element in lieu of a weaker showing on another. However, to obtain a preliminary injunction, a plaintiff must show, by a preponderance of the evidence, the following five elements:

(1) That 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 (a balancing of the equities).25

The first element, that the plaintiff possesses a clearly ascertainable right, is generally neglected because it is so commonsensical. After all, the right in need of protection serves as the very basis of the underlying litigation.26 Typically, preliminary injunctions are sought in cases involving covenants not to compete, unfair competition, property ownership disputes, business interruptions, and situations where a multiplicity of suits have been instituted regarding the same parties and transactions.27 Specific substantive statutes may create many such rights. In a much-cited opinion, the Illinois Supreme Court stated that "where a statute expressly authorizes injunctive relief to enforce provisions of the statute…lack of an adequate remedy at law and irreparable injury need not be shown."28 By passing a statute, the legislature is making a policy decision that certain acts prohibited by the statute cause irreparable injury for which there is no adequate remedy.29 Once a plaintiff shows a violation of the statute, the only other requirement is that the plaintiff has standing to assert the right.30

The second element of preliminary injunctive relief, that the plaintiff has no adequate remedy at law, is the traditional standard used to invoke the jurisdiction of a court of equity. An adequate remedy at law "must be concise, complete, and provide the same practical and efficient resolution as the equitable remedy would provide."31 Although irreparable injury is often used to demonstrate that no adequate remedy at law exists, the two should not be used interchangeably as the former involves injury and the latter is remedial and jurisdictional.32 In some cases, there is a blurring of the concepts because the facts implicate an injury that is so severe that it cannot be measured in monetary terms. In Hough v. Weber, the court issued a preliminary injunction for the widow Hough, enjoining her dead husband’s children from disinterring his remains.33 With great sympathy, the court focused on the deep emotional trauma that she would suffer if the sanctity of her husband’s grave were disturbed.34 However, a clearer example of the adequacy element can be found in Eagle Books, Inc., v. Jones.35 In Eagle Books, the Appellate Court affirmed the issuance of preliminary injunctive relief against adult bookstore picketers, finding that "the potential loss of future business is incapable of adequate computation…even though plaintiff’s ultimate recovery may be a money judgment, a preliminary injunction may be granted when damages are difficult to quantify at the time of the hearing."36 To satisfy this element and avoid confusion, the practitioner should cloak arguments in remedial terms, reserving injury arguments for the irreparable harm element.

The third element requires a plaintiff to demonstrate an immediate threat of irreparable harm sufficient to warrant the extreme remedy of preliminary injunctive relief. Underlying the immediacy requirement is the notion that the threatened injury will occur or continue to occur unless the court promptly intervenes to restore the status quo. Although there is no precise definition for "immediate," the plaintiff must demonstrate that the threat is so imminent that he or she cannot wait for trial.

The irreparable harm requirement focuses on the nature of the threatened injury rather than the remedy itself; the remedy is merely the cart that follows the horse into chancery. Irreparable injury occurs when the injured party cannot be adequately compensated by monetary damages, when damages cannot be calculated within a reasonable degree of certainty or are otherwise speculative, or if the injury is of a continuing nature.37 This is not necessarily a high standard, as "irreparable harm does not have to be devastating harm, or harm that is beyond repair, or even harm in which the injury is great."38

To satisfy the fourth element of preliminary injunctive relief, a likelihood of success on the merits, the plaintiff must show that they have a better then negligible chance of success. 39 It may issue even when there is "serious doubt" as to the plaintiffs’ ultimate success.40 However, when there is no possibility of success, a preliminary injunction is not appropriate. The Seventh Circuit employs a slightly different "sliding scale" method whereby the "degree of likelihood of success on the merits which a plaintiff must demonstrate decreases the more heavily the balance of harms weighs in its favor."41

The fifth element requires the court to balance the equities, by weighing the hardship imposed on the defendant by the preliminary injunction, against the benefit derived by the plaintiff as to minimize the hardship imposed on the parties.42 Judge Posner has offered the following formula for balancing:

[T]he harm to the plaintiff if the injunction is denied, multiplied by the probability that the denial would be an error (that the plaintiff, in other words, will win at trial), exceeds the harm to the defendant if the injunction is granted, multiplied by the probability that granting the injunction would be an error. That probability is simply one minus the probability that the plaintiff will win at trial…the left-hand side of the formula is simply the probability of an erroneous denial weighted by the cost of denial to the plaintiff, and the right-hand side simply the probability of an erroneous grant weighted by the cost of grant to the defendant.43

In Hamer Holding Group, Inc. v. Elmore, the Appellate Court denied injunctive enforcement of a covenant not to compete because the detriment to the defendant was greater than the minimal protection of the corporation’s good will.44

Public interest considerations weigh into the balancing of the equities.45 In Granberg v. Didrickson, taxpayers sought to enjoin an appropriation to the state police, which exceed the amount appropriated by the state budget. The District Court affirmed injunctive relief because it "merely postponed" the expenditure which would be "forever lost" if transferred to the state police.46 Furthermore, a court will not balance the equities when the defendant has knowingly and willingly violated the plaintiff’s rights.47 In Calhoon v. Communications Systems Construction, Inc., the defendant erected cable television lines across the plaintiff’s property even after the plaintiff alerted him of the trespass.48 At trial, the defendant argued that a lease granting him certain rights to use a utility easement rendered his violation unintentional. The court stated that a "mere belief in one’s right, no matter how honestly and reasonably entertained, is no justification."

The provisional nature of preliminary injunctions "justifies holding the moving party liable for all damages if the preliminary injunction or temporary restraining order is later found to have been wrongfully issued…to allow a party, before a dispute is resolved on the merits, to interfere in the activities of another without being held liable for damages caused by the interference, if proved to be in error, would be inequitable and would invite spurious litigation."49 Thus, section 5/11-103 of the Illinois Code of Civil Procedure affords trial courts the discretion to require plaintiffs to post a bond. The amount and conditions of the bond are for "payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained."50 Posting letters of credit in lieu of a bond is not insufficient to satisfy the statute. In addition, governmental agencies and offices are explicitly exempted from any bond requirements. If the preliminary injunction is dissolved or ultimately overturned, the bond will be released to the defendant.51

If the court does not require a bond, the record must show good cause, as a mere conclusory statement that "for good cause shown, issue without bond" is insufficient to sustain the preliminary injunction on appeal.52 Bond will be excused when the requirement would be an undue hardship on the plaintiff.53 However, the bond requirement may be waived if the defendant fails to seek it.54

A court has the "inherent power" to modify or dissolve any preliminary injunctions it issues, if the facts change or equity no longer requires the injunction. 55 In Cross Wood Products, Inc. v. Suter, a wood pallet company sued a former employee for violating a covenant not to compete by selling wood products in the same geographic area.56 The First District Appellate Court dissolved the preliminary injunction, finding that the passage of time together with the effects of the preliminary injunction had effectively returned the parties to the status quo.

"A motion to dissolve an injunction may be made at any time before or after answer is filed…the court shall decide the motion upon the weight of the evidence."57 Section 5/11-109 of the Illinois Code of Civil Procedure allows both parties to support their positions with affidavits that may be read into evidence as part of the hearing on the motion to dissolve. The defendant has the burden of showing "an abuse of discretion by the court in its entry of the preliminary injunction."58 Furthermore, a defendant’s failure to object to the issuance of a preliminary injunction does not bar its later dissolution.59

Pursuant to section 5/11-110 of the Illinois Code of Civil Procedure, the court may impose damages on the plaintiff for injuries sustained as a result of a dissolved, or wrongfully issued, preliminary injunction.60 The measure of damages includes the costs of litigating the dissolution, including attorneys’ fees. Dissolution is the judicial determination that a preliminary injunction was entered wrongfully, rather than the expiration of the injunction by its terms, reversal on appeal, or merger with permanent injunctive relief. 61 A plaintiff’s consent to a motion to dissolve constitutes a waiver of defenses and may constitute an adjudication on the merits.62 Damages may even be obtained after a preliminary injunction expires by its own terms, as long as a motion to dissolve is filed in a timely manner.63 A proper motion to dissolve a preliminary injunction must specify the nature and amount of allowable damages under oath. Even if the court fails to assess damages, the defendant may still recover the injunction bond, if posted.

Ultimately, the strength of a preliminary injunction depends upon the authority of the issuing court. "The interests of orderly government demand respect and compliance with orders issued by courts having jurisdiction of the persons and subject matter, and one who willfully refuses obedience does so at his peril."64

1 In the interests of brevity, this article will use "plaintiff" as the party seeking injunctive relief, and "defendant" as the potentially enjoined party.

2 See Duval v. Severson, 15 Ill.App. 3d 634, 640-641, 304 N.E.2d 747 (1st Dist. 1973).

3 See John Leubsdorf, The Standard for Preliminary Injunctions. 91 Harv.L.Rev. 525, 526 (1976).

4 735 Ill. Comp. Stat. 5/11-101, 5/11-102 (West 2000).

5 Buzz Barton & Assoc., Inc. v. Giannone, 108 Ill.2d 373, 385, 483 N.E.2d 1271 (1985).

6 City of Chicago v. Westphalen, 93 Ill.App.3d 1110, 418 N.E.2d 63 (1st Dist. 1981), cert denied, 455 U.S. 995, 102 S.Ct. 1825 (1982).

7 See Bullard v. Bullard, 66 Ill.App.3d 132, 135, 383 N.E.2d 684 (5th Dist. 1978).

8 Television Telecommunication Sys., Inc. v. Saindon, 169 Ill.App.3d 8, 522 N.E.2d 1359 (2nd Dist. 1988), appeal denied, 122 Ill.2d 595, 530 N.E.2d 266 (1989).

9 See 735 Ill. Comp. Stat. 5/11-102 (West 2000).

10 See Walter v. City of West Chicago, 39 Ill.App.3d 297, 300-301, 349 N.E.2d 437 (2nd Dist. 1976).

11 See G & J Parking Co. v. City of Chicago, 168 Ill.App.3d 382, 387, 522 N.E.2d 774 (1st Dist. 1988).

12 See Board of Ed. of Community School Dist. No. 101 v. Parlor, 81 Ill.App.3d 667, 669, 402 N.E.2d 388 (5th Dist. 1980).

13 Office Electronics, Inc. v. Adell, 228 Ill.App.3d 814, 593 N. E.2d 732 (1st Dist. 1992).

14 People ex. rel. Edgar v. Miller, 89 Ill.App.3d 45, 441 N.E.2d 1328 (2nd Dist. 1980).

15 Capitol Records, Inc. v. Vee Jay Records, Inc., 47 Ill. App.2d 468, 197 N.E.2d 503 (1st Dist. 1964).

16 Danville Polyclinic, Ltd. v. Dethmers, 260 Ill.App.3d 108, 114, 631 N.E.2d 842 (4th Dist. 1994).

17 See In re Marriage of Schwartz, 131 Ill.App.3d 351, 354, 475 N.E.2d 1077 (1st Dist. 1985).

18 Id.

19 See Edgewater Constr. Co., Inc., v. Percy Wilson Mortg. & Fin. Corp., 44 Ill.App.3d 220, 229, 357 N.E.2d 1307 (1st Dist. 1976).

20 See Duval, 15 Ill. App. 3d at 641.

21 Id.

22 Id.

23 See People ex rel. Edgar v. Miller, 110 Ill.App.3d 264, 411 N.E.2d 1328 (4th Dist. 1982).

24 See Dorothy Kirie Kinnaird, Chancery and Special Remedies: Interlocutory Injunctions, Illinois Institute of Continuing Legal Education. (September 1999).

25 Lake Shore Club of Chicago v. Lakefront Realty Corp., 79 Ill.App.3d 918, 927, 398 N.E.2d 893 (1st Dist. 1979).

26 See generally Buzz Barton, 108 Ill.2d 373, 385, 483 N.E.2d 1271 (1985).

27 See William Lynch Schaller, Some Preliminary Thoughts About Preliminary Injunctions, 85 Ill.B.J. 12, 27 (January 1997).

28 See People v. Fiorini, 143 Ill.App.2d 318, 344, 574 N.E.2d 612 (Ill. 1991).

29 See People v. Staunton Landfill, Inc., 245 Ill.App.3d 757, 768, 614 N.E.2d 1286 (4th Dist. 1993).

30 Id.

31 See Hough v. Weber, 202 Ill.App.3d 687, 687, 560 N.E.2d 5 (2nd Dist. 1990).

32 See Petrzilka v. Gorscak, 199 Ill.App.3d 120, 124, 556 N.E.2d 1265 (2nd Dist. 1990).

33 Id.

34 Id.

35 See Eagle Books, Inc. v. Jones, 130 Ill.App.3d 407, 474 N.E.2d 444 (4th Dist. 1985).

36 See id.

37 Simpkins v. Maras, 17 Ill.App.2d 238, 245, 149 N.E.2d 430 (3rd Dist. 1958).

38 See Gold v. Ziff Communications Co., 196 Ill.App.3d 425, 435, 553 N.E.2d 404 (1st Dist 1989).

39 Hayden’s Sports Center, Inc. v. Johnson, 109 Ill.App.3d 1140, 1145, 441 N.E.2d 927 (2nd Dist. 1982).

40 Lake in the Hills Aviation Group, Inc. v. Village of Lake in the Hills, 298 Ill.App.3d 175, 698 N.E.2d 163 (2nd Dist. 1998).

41 Hexacomb Corp. v. GTW Enterprises, Inc., 874 F.Supp. 457, 468 (N.D. Ill. 1993).

42 Platinum Home Mortg. Corp. v. Platinum Financial Group, Inc., 149 F.3d 722, 726 (7th Cir. 1998).

43 See American Hosp. Supply Corp. v. Hospital Products Ltd., 780 F.2d 589 (7th Cir. 1986).

44 Hamer Holding Group, Inc. v. Elmore, 244 Ill.App.3d 1069, 613 N.E.2d 1190 (1st Dist. 1993).

45 Granberg v. Didrickson, 279 Ill.App.3d 886, 890, 665 N.E.2d 398 (1st Dist. 1996).

46 Granberg, 279 Ill.App.3d at 891.

47 Crain Enterpises, Inc. v. City of Mound City, 189 Ill.App.3d 130, 145, 544 N.E.2d 1329 (5th Dist. 1989).

48 Calhoon v. Communications Sys. Constr., Inc., 140 Ill.App.3d 1012, 489 N.E.2d 23 (5th Dist. 1986).

49 Buzz Barton, 108 Ill.2d at 383.

50 735 Ill. Comp. Stat. 5/11-103 (West 2000).

51 Powell v. Home Run Inn, Inc., 202 Ill.App.3d 94, 102, 559 N.E.2d 803 (1st Dist. 1990).

52 Town of Cicero v. Weilander, 35 Ill.App.2d 456, 469, 183 N.E.2d 40 (1st Dist. 1962).

53 Gold, 196 Ill.App.3d at 435.

54 K.F.K. Corp. v. American Continental Homes, Inc., 31 Ill.App.3d 1017, 1021-1022, 335 N.E.2d 156 (2nd Dist. 1975).

55 See Patrick Media Group, Inc. v. City of Chicago, 252 Ill.App.3d 942, 626 N.E.2d 1062 (1st Dist. 1993).

56 Cross Wood Products, Inc., v. Suter, 97 Ill.App.3d 282, 287, 422 N.E.2d 953 (1st Dist. 1981).

57 See 735 Ill. Comp. Stat. 5/11-108 (West 2000).

58 See People ex rel. Stony Island Church of Christ v. Mannings, 156 Ill.App.3d 356, 363, 509 N.E.2d 572 (1st Dist. 1987).

59 International Assoc. of Firefighters Local No. 23 v. City of East St. Louis, 206 Ill.App.3d 580, 565 N.E.2d 264 (5th Dist. 1990).

60 Only preliminary injunctions that are still in force can be dissolved.

61 R.L. Polk and Co. v. Ryan, 296 Ill.App.3d 132, 136, 694 N.E.2d 1027 (4th Dist. 1998), appeal denied, 705 N.E.2d 449 (1998).

62 See Blotz v. Estate of Bryant, 175 Ill.App.3d 1056, 1065, 530 N.E.2d 985 (1st Dist 1988).

63 Emerson Elec. Co. v. Sherman, 150 Ill.App.3d 832, 502 N.E.2d 414 (1st Dist. 1986).

64 Patrick Media Group, 626 N.E.2d at 1078.

Aaron H. Reinke is a DuPage County Assistant State’s Attorney and has served as a legislative assistant to State Representative Carole Pankau. He received his B.A. (1998) and J.D. (2000) from Loyola University Chicago.

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