What Is An Injunction And When Can One Be Obtained?

Television news programs often make reference to companies or the government obtaining injunctions against various types of conduct.  This article explains what an injunction is and when/how one might be obtained from a court.

Businesses sometimes have a need to stop – enjoin – a person or another business from doing something harmful to the business.  Government agencies also often need to stop various types of behavior that are believed to violate laws or agency regulations.  In both situations, the party that is trying to stop certain behavior will ask a court to enjoin the behavior.

In the business context, a need for an injunction often occurs when an employee leaves and taking confidential information with him/her, or a former employee attempts to divert business away from the employer.  Sometimes the business has a legitimate complaint; sometimes the business is simply trying to stifle legitimate competition.   Regardless of the merits of the situation, the procedure to obtain an injunction will be the same.

There are three types of injunctive relief:  a temporary restraining order, a preliminary or interlocutory injunction, and a permanent injunction.  Temporary restraining orders are addressed in a separate article in this series.  This article discusses preliminary/interlocutory injunctions and permanent injunctions.

Preliminary Injunction/Interlocutory Injunction

A preliminary or interlocutory injunction is typically an interim injunction.  It is typically issued after an evidentiary hearing a few weeks after an initial, temporary restraining order (“TRO”) has been issued.  Although Georgia’s courts typically refer to such an injunction as an “interlocutory” injunction and federal court rules use the term “preliminary” injunction, in practice these injunctions are the same.

If a TRO has already been issued in the case, the party that has obtained the TRO (the “Petitioner”) will typically try to schedule a court hearing on a preliminary or interlocutory injunction for a date prior to the TRO’s expiration, in the hope that there will be a seamless transition between a TRO and a preliminary or interlocutory injunction.

Proof of the Need for the Interlocutory/Preliminary Injunction Must be Provided Under Oath

Although courts will often issue a TRO on the basis of one or two affidavits and only a sketchy understanding of the facts of a dispute, courts generally will conduct a more thorough evidentiary hearing before issuing a preliminary or interlocutory injunction.  All parties to the dispute must have prior notice of the hearing and an opportunity to be heard before the injunction can issue.

In federal court, the evidentiary hearing will be conducted with live witnesses testifying under oath.  Superior Court judges in Georgia have more discretion in this matter, with some opting to require live testimony and others sometimes accepting affidavit (written) testimony instead.

Criteria for Interlocutory/Preliminary Injunction

The Georgia and federal court rules set forth four criteria that must be satisfied before an interlocutory or preliminary injunction can be issued:  likelihood of success on the merits; potential for irreparable harm in the absence of an injunction; harm to the plaintiff if the injunction is not granted versus harm to the defendant if the injunction is granted; and public policy considerations.  Each of these criteria must be satisfied.

1. Likelihood of Success on the Merits:  The Petitioner must show the judge that the facts and the law demonstrate that he is likely to win at trial.  This means that the Petitioner needs to have evidence and legal analysis ready to present to the judge.  For example, if the Petitioner is trying to enjoin use of information that he contends is a trade secret, he will need to be able to show the judge both that the information meets the definition of a trade secret under Georgia law and that the responding party either has already stolen and disclosed the trade secret or has somehow given an indication that he intends to do so.  The respondent should be prepared to demonstrate why the information does not meet the definition of a trade secret under Georgia law, and/or demonstrate that the trade secret is not in any danger of being stolen or disclosed.

2. Potential for Irreparable Harm if no Injunction:  The Petitioner must show that the harm is imminent and that the nature of the expected harm is such that an award of money damages against the Respondent at a later date will not make the Petitioner whole.  The biggest obstacle to satisfying this requirement is that courts often conclude that money damages are sufficient to make a Petitioner whole.  Examples of money damages not being sufficient are where market share will be permanently lost absent an injunction; where a trade secret will become known to competitors or the general public absent an injunction; or where a person may be permanently physically injured absent an injunction.  Where business may be temporarily lost but the losses can be remedied with payment of money damages, this criterion likely will not be satisfied.

3. Harm to Petitioner if Injunction is Not Granted Versus Harm to Respondent if Injunction is Granted:  While there may be potential for harm to the Petitioner in the absence of an injunction, there is often potential for harm to the Respondent in the event that the injunction is granted.  For example, the Respondent could be forced to abandon certain types of business activities and lose income as a result.  The judge must balance these competing risks and, in effect, decide which party faces more risk.

4. Public Policy Considerations:  This requirement is the hardest to describe because its meaning depends on the facts of each case.  In effect, the court must consider whether the injunction, if granted, will violate the public policy of the state or county where the injunction is sought.  For example, a court may be asked to issue an injunction that enforces obligations that are clearly spelled out in a written contract, where the court concludes that the contract itself violates Georgia’s public policy.  The court would be unlikely to enforce clearly worded language where doing so would result in a violation of public policy.  In other situations, there may be no significant public policy considerations applicable to the case.  When that happens, the court will likely base its decision on the other three criteria discussed above.

Duration of Interlocutory/Preliminary Injunction

The interlocutory or preliminary injunction should state on its face when it will expire.  Generally it will remain in effect until the court considers whether to issue a permanent injunction.

How Must the Preliminary/Interlocutory Injunction be Phrased?

The preliminary/interlocutory injunction must state on its face specifically what conduct is enjoined.  It must stand alone, with no need for anyone to refer to any other document to determine what is prohibited.  In federal court, the injunction must also state on its face the reason the injunction has been issued, generally with reference to the four criteria discussed above.

Is a Bond Required?

As with a TRO, a bond must be posted in connection with issuance of a preliminary injunction by a federal court.  Georgia’s Superior Court judges have the option of requiring a bond in connection with issuance of an interlocutory injunction.

Who is Bound by an Injunction?

A preliminary or interlocutory injunction will bind not only the specifically named Respondent, but also agents of the Respondent; attorneys for the Respondent; and anyone else who has been given notice of the order.  This means that any other person or entity who is in “active concert or participation” with the enjoined party can also be enjoined simply by being provided with notice of the injunction.  Thus, if a company is able to obtain an injunction against a former employee calling on certain customers, and if the company is aware that the former employee has colleagues in his new business, the company can provide the colleagues with a copy of the injunction and thereby prevent the colleagues from calling on those customers.

Facts Determined by the Court at the Hearing on the Preliminary/Interlocutory Injunction Can Be Deemed Established for Purposes of the Trial on the Merits of the Case.

One of the reasons that hearings on preliminary/interlocutory injunctions can be high stakes for all parties is that the court can make determinations of fact during that hearing that will be binding on the parties for the rest of the case.  When the court decides to do this, the court will notify all parties either before or during the hearing that it intends to decide certain facts of the case on the basis of evidence to be presented during the hearing.  Even if the court doesn’t follow this procedure, all of the evidence that is presented at the hearing on the preliminary/interlocutory injunction becomes a part of the evidence before the court and this evidence does not have to be presented a second time at the trial of the case.  Thus, even though a hearing on a preliminary/interlocutory injunction may take place very early in the case, before a lot of the evidence has been developed, the court may choose to rely on the evidence presented at that hearing when the court makes decisions later in the case.

Permanent Injunction

At the end of the case, after the trial, the judge can be asked to enter a permanent injunction.  This decision must be made by the judge even if the jury decides other issues in the case.  When deciding whether to issue a permanent injunction, the judge must consider the evidence presented at trial, the applicable law, and any facts that have been determined at any earlier point in the case.  The permanent injunction will state whether it will remain in place forever, or what conditions must be met for the injunction to expire.  The permanent injunction must be specific as to what is prohibited, so that it will not be necessary for anyone to refer to any other document to know what is forbidden.

Territorial Effect:

Georgia: Georgia’s courts have held that a permanent injunction issued under Georgia law can apply to conduct in other states where the injunction so states.  For example, in a recent case the Georgia Supreme Court approved a permanent injunction that prohibited enforcement of certain post-employment restrictive covenants not only in Georgia but also in Florida because the restrictions were not enforceable under Georgia law.

Federal: The U.S. Court of Appeals for the 11th Circuit (covering cases originating in Georgia, Alabama and Florida) has ruled that an injunction only applies within the federal court district in which it is issued, and that it is up to courts in other jurisdictions to determine whether to also enjoin the Respondent.  Thus, a permanent injunction issued by a judge of the Northern District of Georgia (covering the Metro Atlanta area) would only prohibit the specified activities within the geographic boundaries of the Northern District of Georgia.  To have the injunction apply elsewhere in Georgia, or elsewhere in the United States, the petitioner would have to apply to a federal court in the other jurisdictions where the respondent may be acting.

Violation of an Injunction is Very Serious.

If a person or entity that has been enjoined (or that has been given adequate notice of the injunction) violates the injunction, the potential penalty is a finding that the person/entity is in contempt of court.  Punishments can include being sent to jail until the enjoined party complies with the injunction or assessment of a monetary fine.

The analysis set forth in this article is provided for general understanding only and should not be considered legal advice.  Counsel should always be consulted for advice regarding a specific situation.

Comments

  1. Le Roy Marshall says:

    I was wondering does this legal procedure(injunction) apply to personal issues like child support? For example, if a person goes to several States opening up cases without closing a case and getting on their welfare systems. Result being that these State start procedures against respondent. Would the injuction stop this from happening while the respondent pettitions the Court to shows the legal reasons why the State should pay damages for their behavior.

    • mari says:

      Thank you for your comment. The answer to your question will depend on the specific facts of your situation and the child support rules applicable in the state where the proceeding is pending. I don’t handle matters involving family law, and I don’t know which state(s) the case is in, so I can’t comment further on your inquiry. I encourage you to seek competent family law counsel in the state where the case is pending as soon as you can.

  2. Sam McCrea says:

    Hello. I need to file an injunction against a police department because they issued a legal trespass against me. I was trespassed from a local college campus. However, I have been accepted at this college campus and very-much want to go there. How can I file the injunction?
    SM

    • mari says:

      Sam,
      Thank you for your inquiry. You raise interesting questions. State laws vary regarding both injunctions and trespass issues. To be able to advise you, I would need to know the jurisdiction in which the college campus is located. Feel free to email me directly using the contact information on this website so that we can continue this conversation.

  3. Christy says:

    I was informed that my ex husband had an obtained an injunction in order to prevent his child support from being deducted from his payroll. I have recently required the services of child support enforcement in order to obtain my child support. However, I was never notified that he had filed for such relief, and child support services was not notified either that relief was being asked for. Can a judge issue any type of injunction without the other parties being notified?

    • mari says:

      Thank you for your post. You haven’t identified the state in which the child support matter is pending. Since state law determines the circumstances in which an injunction can be granted without prior notice to the other parties, I can’t provide a substantive response to your question. I encourage you to retain an attorney in the statewhere the child support enforcement action is pending if you haven’t already done so. Once that attorney knows all of the relevant facts, he/she should be in a position to advise you about the injunction and any related issues.

  4. Michelle says:

    Thank you Mari, this information is a great service to all.

    I have been notified to appear in Court here in Atlanta, Georgia on a contempt proceeding for falling behind in Child support payments. My payments were given to the Custodial parents and since he did not report it to them they say i will not be credited for those payments and i wish to pursue the matter in Court on a separate filing. BUT I AM WONDERING IF A PRELIMINARY INJUNCTION TO STOP THE CONTEMPT HEARING WILL HELP ME, BECAUSE I NEED TO SHOW ANOTHER COURT THE PAYMENTS I MADE DIRECTLY TO THE CUSTODIAL PARENT.

    Can i file for a PRELIMINARY INJUNCTION in Federal District Court to stay the Contempt hearing against me in the Superior Court of Fulton County Georgia at least to give me a few weeks to pursue the direct payments matter before a Judge ?

    • mari says:

      Michelle,
      Thank you for your post. The question of whether a petition for an injunction will make sense in your situation will depend on the specific facts. Since I don’t have all of the facts, I can’t give you meaningful advice. The attorney representing you in the child support contempt proceeding will be in a better position to advise you. But, in general, it often makes more sense to address the issues all in the same proceeding (in this case, the child support contempt proceeding) rather than ask a different court to enter an injunction against the court where the contempt proceeding is pending.

  5. Jackie says:

    My homeowner’s association has decided to tow a vehicle that is both a personal and business use vehicle that has been wrapped with the companies information. The association has used an expanded definition for commercial vehicle or vehicle used for primarily commercial that is not included in the original covenant declarations which have not been amended or changed. The definition provided by the association does not align to any legal definition and is a very broad definition. Is this a situation where an injunction would be appropriate as the association has chosen not to discuss alternatives.

    • mari says:

      Jackie,
      Thank you for your inquiry. The answer to your question will depend on a lot of details that I don’t have, including the specific language in the homeowners’ covenants. But, in general, at least in Georgia, an injunction could be used to prevent a homeowners’ association from doing something that is not authorized. A judge would likely look at all of the facts, including the conduct complained of by the homeowners’ association and the exact language in the covenants, as well as any applicable county, city and state laws.

  6. Tracy says:

    I operate an event production agency which gets paid via the client and commissions from hotels of which it recommends if the client agrees to execute an event at the hotel upon a successful contract negotiation by my company. These deals are 6-figure contracts of which the events are multimillion dollar productions.

    The business partner (being introduce to the client through this business relationship) creates a competing company, of which the client then dissolves its 3 year relationship with our joint company and hired the new business partner company of which I was not a partner.

    My relationship with my business partner became strain when he failed to collect fees for the event planning and obtaining a signed contract by the client. The client has never complained about the quality of my work.

    After 8 months of working on the client project, the client directly hired a business partner immediately after they cancelled their contract with my company, did not pay their final bill to my company and then prevented my company from collecting commissions as a result of changing an executed contract with the hotels to reflect a different company to be paid the commission. Because the event was managed by the business partner of which he was the point of contact with the client, our vendors and venues, the hotel felt it was okay to change the commission from my company to his company after the contract had been executed by the hotel and the client. Therefore, the company of which the business partner and I operated together – never received any payment for worked already performed for the client and my company did not receive our commission from the hotel after the event was executed at the hotel by the business partner new company. And currently, the business partner new company currently produces the client events of which has caused me to consider bankruptcy due to the loss of income.

    Here’s my question: (1) Can I place an injunction against the business partner from doing business with this former client, as they are producing events in the exact manner of which I would produce the event. (2) Can I sue the “Client” for Tortuous Interference of Business Relations? My company produced overlapping events for the company, so while in a written contract on one event, we begin producing the next event on a verbal agreement per the client request. We’ve done this several times before with no issues as the client has always paid. It was revealed the client issued a statement to other distributors within the industry “not to do business” with my company as they we were exclusive to the company – which was not true. The client also induced harm to my relationship with my business partner when it asked my business partner to change the hotel contracts whereas our company would not get paid the commission as we normally did and redirect those funds to another company which is actually owed by the “individual” that works at the “client” company. The commission would be around 60k-100k. The client directly hired a business partner of which I consider the business partner company a competing company, then the client sends me a “it was great working with you” letter, then declined to sign my contract after 8 months of planning (with 3 months to the event). The client attempted to make a payment of 22k for 8 months of planning (of which I declined) as opposed to the 92k it actually owed, had we continued producing the event up into that point based on the last 10 events we did.

    I know I can sue for my invoice, but I’d like to sue for interference and obtain punitive damages. But I’d also like to STOP my former business partner from producing their events as he hired former employees, etc., they all know my trade secrets of how I produce events. Now, people in the industry is confused on how are producing these events.

    Thank you and sorry for so long, but I’m a bit pissed.

    • mari says:

      Thank you for your comment. You have asked several important questions that can only be answered after I have more information. I will need to know how recently these problems occurred, where they occurred (which state), and more details. Without this additional information, I would only be guessing at appropriate recommendations without having a complete picture of the situation. If you’re in Georgia and would like to discuss this further in a confidential setting, please feel free to contact me using the contact form on my website. (Please remember that any information you post on my website will be available to the public.)

  7. Mack says:

    I was recently served a TRO by my previous employer to stop my employment with my current employer. The TRO was issued by an Alabama court for a company located in Atlanta, GA. Per the summons, I am being sued for breach of contract and allegedly violating the non compete and non solicitation provisions of my employment agreement. I have been accused of doing business with two of their clients which is not true. I’ve reached out to both of those clients who have provided me with notorized affidavits stating the inaccuracy of the information presented to the courts for this ex parte tro. I have submitted a motion to dissolve the tro and dismiss the complaint based on non compete and non solicitation agreements entered into before the commencement of employment (Agreement dates for 8/23 but effective 8/26) are void as a matter of law under section 8-1-1 in Alabama. (Pitney Bowes Inc. V Berney Office Solutions, 823 So. 2d 659, 662 Ala.2001). Also in Dawson v Ameritox, LTD the court agreed that the non compete agreement was void because it was signed prior to his employment with Ameritox. Does a circuit court judge in Alabama have jurisdiction to stop me for working in Georgia? How are they penalized for submitting false information to the courts to obtain this rto?

    • mari says:

      Thank you for your inquiry. The law governing restrictive covenants is very complex. The outcome of these sorts of disputes depends on the language of the employment agreement, the employee’s actual conduct, and the state law applicable to the dispute. To be able to properly answer your question, I would need to review the actual employment agreement and the judge’s order. I would also need to know more details about your activities. If you would like to discuss your situation (and your options) in more detail, please feel free to email me directly at mmyer@myerlawatlanta.com to schedule an appointment. Meanwhile, please be cautious about posting any specific information about this matter on a public website.

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