Motion Practice I - TROs and Preliminary Injunctions

Motion Practice I- TROs and Preliminary Injunctions

Part of the NEWBIE LITIGATOR SCHOOL 2015 Series

Premier Date: October 6, 2015


MEET THE FACULTY

PANELISTSChris Heintskill Levenfeld Pearlstein LLCRobert Michaels Robinson Curley & Clayton P.C.Randall Warner Judge of the Superior Court of Arizona


MODERATORJohn Martin,

MartinSirott LLC

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Practical and entertaining education for business owners and executives, Accredited Investors, and their legal and

financial advisors.

For more information, visit www.financialpoisewebinars.com

DISCLAIMER:

THE MATERIAL IN THIS PRESENTATION IS FOR INFORMATIONAL PURPOSES ONLY. IT SHOULD NOT BE CONSIDERED LEGAL ADVICE. YOU SHOULD CONSULT WITH AN ATTORNEY TO DETERMINE WHAT

MAY BE BEST FOR YOUR INDIVIDUAL NEEDS


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ABOUT THIS SERIESMotion Practice I- TROs and Preliminary Injunctions

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This series is targeted to attorneys who are just starting to get involved in civil litigation, or who could use a refresher on some litigation fundamentals. The purpose is to provide an introduction to various different components and parts of litigation – from the basic rules of civil procedure and evidence, to dispositive motions, through trial, and on to appeal and post-judgment collection work. The series is best viewed as a whole, building from one session to the next.

EPISODES IN THIS SERIES


(Dates below are premier dates; all webinars also available on demand)

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EPISODE #1 Federal Civil Procedure Rule Refresher 8/18/15

EPISODE #2 Discovery Practice 8/26/15

EPISODE #3 Evidence Rule Refresher 9/3/15

EPISODE #4 Mediation Basics 9/10/15

EPISODE #5 Working with Experts

9/22/15

EPISODE #6 Motion Practice I- TROs and Preliminary Injunctions 10/6/15

EPISODE #7 Motion Practice II - Motions to Dismiss and Summary Judgement

10/20/15

EPISODE #8 Anatomy of a Trial 10/27/15

EPISODE #9 Appellate Practice – 101 11/3/15

EPISODE #10 Post-Judgment Proceedings & Collections

11/11/15


ABOUT THIS WEBINAR

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What do you do when you need relief from the courts now!? This session will guide you through procedures seeking temporary restraining orders and preliminary injunctions. Our panelists will discuss both how to prevail on these motions, as well as how best to defeat them.


When Should You Consider Moving for a TRO or Preliminary

Injunction?

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• Basic Requirement: Need to Preserve Status Quo- Threat of right being violated that cannot be remedied later

Disclosures of trade secrets/Other confidential information

Unfair competition/Violation of noncompete agreements

Sale of real estate

- Usually seeking to prevent action. Mandatory injunctions, requiring action, are disfavored


TRO and Preliminary Injunction Differences

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G TRO Seeks Immediate Relief Sometimes obtained without notice

G Scope of Hearing on TRO Usually More Limited May be Unable to Present Substantial Evidence

G TRO Shorter in Duration Requires quick follow-up


You Want to Hold Everything,So Where Do You Start?

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Preparation of Verified Pleadings/Affidavits Proposed Order Spelling out Relief Requested Notice (if Any) to Other Side


What Notice to be Provided

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Notice is Generally Desirable Provided with other motions Due process requires elsewhere

Countervailing Considerations TROs frequently time sensitive May be threat of additional harm


Special Considerations for Injunctive Relief

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Factors that May Make Injunction Easier:— Contractual provisions reflecting agreement to

injunction or that breach of particular provisions not remediable by monetary damages

— Statutes may expressly provide for injunctive relief


What if There’s an Arbitration Clause?

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o Revised Uniform Arbitration Act authorizes grant of injunctive relief to preserve status quo until arbitrator is appointed

o Injunction likely to be dissolved upon appointment unless arbitrator continues


Making Your Case for Immediate Injunctive Relief

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Know What You Need to Show: Right needing protection Likelihood of Success Irreparable Harm/Inadequate remedy at law Balance of harms/public interest (where applicable)

Know How You Need to Show It Procedures for Emergency Relief Differ from Court to Court Evidentiary Hearing on TRO May Not Be Required or Permitted

Know The Costs of Obtaining Relief Bond requirement in many instances


You’ve Won. Now What?

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Get the Order Right• TRO usually must specify

reasons for entry

• Prohibited conduct should be described in reasonable detail

• Posting bond may be necessary prerequisite

Additional Proceedings After TRO• Provide notice of order to

affected parties

• Expedited exchanges of information

• Scheduling of further proceedings to extend TRO or for preliminary injunction


You’ve Lost. What Next?

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Possibility of motion for preliminary injunction after TRO denied

Was ruling based upon lack of notice/emergency or substantive defect?

Can relief be obtained by scheduling prompt (though not immediate) preliminary injunctive proceedings?


Is Appeal Possible?

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• Some Jurisdictions (including Illinois) Permit both Grants and Denials of TROs to be Appealed using Expedited Procedures. See Ill. S. Ct. Rule 307(d).

• Federal Rules do not Permit Denial (or Grant) of TRO to be Appealed Absent Exceptional Circumstances


Defending Against Claims to Immediate Injunctive Relief

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Deciding What to Fight• What makes status quo inequitable?

• Can matter be resolved in client’s favor with more substantial record if TRO is uncontested?

• Is negotiated resolution possible?


Defending Against Claims to Immediate Injunctive Relief

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Deciding How to Fight• What are your best defenses to the claim and to

the relief sought?

• What record can you put before the court?


What Do You Need in Defense?

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Answer to factual claims, supported by verification/evidence

Equitable defensesAvailability of monetary reliefUnclean hands


Also Helpful in Defense

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Brief Addressing Legal Claims and Limitations of Relief Consider including motion to dismiss, if

available

Understanding of harms from injunction to use in setting bond


What Can be Done if Your Client is Enjoined

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•Motions to Dissolve TROs

• Stays/Appeals of Preliminary Injunctions

•Damages for Improperly Issued Injunctions


Enforcement of Injunctions

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Keep in Mind The Basics: Injunctions are court orders Enforceable in contempt

proceedings before the court entering the injunction


Enforcement Concerns

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• Injunctive Relief is Subject to Jurisdictional Limits

Full faith and credit . . . does not mean that States must adopt the practices of other States regarding the time, manner, and mechanisms for enforcing judgments. Enforcement measures do not travel with the sister state judgment as preclusive effects do; such measures remain subject to the evenhanded control of forum law. Baker by Thomas v. Gen. Motors Corp., 522 U.S. 222, 235, (1998)

• Finality of Decision May Affect Faith and Credit Afforded Orders

MORE ABOUT THE FACULTYJOHN MARTIN


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[email protected]

John Martin is a member of MartinSirott LLC, a firm he founded in 2009. He has over twenty years of experience in representing clients in both trial and appellate courts, and has obtained successful results in all stages of the litigation process from initial motion practice through appeal. His practice is devoted to complex commercial disputes, with principal emphasis in fiduciary and financial litigation. He has substantial experience in defending against class, shareholder, and derivative actions, including defending claims against individual corporate officers and condominium association board members sued in derivate claims. John is also a frequent author and speaker on issues relating to professional ethics, including ethical issues associated with attorney marketing and attorney fee arrangements. He currently serves as chair of the Chicago Bar Association’s Professional Fees committee, in which capacity he arbitrates and mediates attorney fee disputes, and has previously served as chair of the American Bar Association Section of Litigation’s Ethics and Professionalism Committee.

Before founding MartinSirott LLC, John was an associate and partner at Schiff Hardin LLP in Chicago and a law clerk for a federal district court judge.

MORE ABOUT THE FACULTYCHRIS HEINTSKILL


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[email protected]

Chris Heintskill is a partner in the Litigation Group of Levenfeld Pearlstein LLC. He bases his practice primarily on real-estate disputes involving large and middle-market clients. This includes brokerage-commission litigation, developer liability, commercial foreclosures, note sales, and representing homeowners and condominium associations in lawsuits under the Illinois Condominium Property Act. Chris has successfully tried cases to verdict, and has arbitrated a number of matters before the American Arbitration Association and various other self-regulatory agencies.

Chris also has significant experience litigating temporary restraining orders, preliminary and permanent injunctions, and other equitable-relief cases that require creative solutions and the ability to think “out of the box.”

MORE ABOUT THE FACULTYROBERT MICHAELS


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[email protected]

Rob is a shareholder at Robinson Curley & Clayton P.C., a leading Chicago-based litigation boutique.

Rob counsels and litigates for clients in a wide variety of complex commercial litigation matters, including fraud, RICO, shareholder disputes, professional liability and other claims arising from corporate looting and insolvencies, as well as a range of software and technology matters. Rob has practiced in state and federal courts around the country and has successfully argued a number of federal appeals.

Before joining RCC, Rob was a Staff Attorney and Project Director at the Environmental Law and Policy Center of the Midwest, a Bigelow Teaching Fellow at the University of Chicago Law School, an associate at Mayer Brown, and a law clerk for a federal district court judge.

MORE ABOUT THE FACULTYJUDGE RANDALL WARNER


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[email protected] H. Warner was appointed Judge of the Superior Court of Arizona by Governor Janet Napolitano in August 2007. He has served on family court, criminal court and civil court assignments. He is currently the Civil Presiding Judge in Maricopa County and has a complex civil calendar. He chairs the Court’s Commercial Court Practices and Procedures Committee.

Before joining the bench, Judge Warner was a partner at Jones, Skelton & Hochuli, LLC where he had an appellate and commercial litigation practice. Judge Warner has served on numerous committees for the Arizona State Bar and Arizona Supreme Court. He speaks frequently on civil practice issues, legal writing and effective advocacy.

Judge Warner’s legal publications include All Mixed Up About Contract Interpretation: When Is Contract Interpretation A Legal Question And When Is It A Fact Question?, 5 Va. L. & Bus. Rev. 81 (2010) and All Mixed Up About Mixed Questions, 7 J. App. Prac. & Process 101 (2005). He has written a number of articles for the Arizona Attorney magazine, including Parenting from the Bench, Ariz. Att’y (July 2010), The Seven Deadly Judges, Ariz. Att’y (March 2005), and Cites for Sore Eyes, Ariz. Att’y (December 2004). He currently writes a Civil Practice Pointers column for the Arizona Attorney.

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IMPORTANT NOTE:

THE MATERIAL IN THIS PRESENTATION IS FOR GENERAL EDUCATIONAL PURPOSES ONLY.

IT SHOULD NOT BE CONSIDERED LEGAL, INVESTMENT, FINANCIAL, OR ANY OTHER TYPE OF ADVICE ON WHICH YOU SHOULD RELY.

YOU SHOULD CONSULT WITH AN APPROPRIATE PROFESSIONAL ADVISOR TO DETERMINE WHAT MAY BE BEST FOR YOUR INDIVIDUAL NEEDS. 33