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A Practical Guide to Injunctive Relief

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A Practical Guide to Injunctive Relief

Preliminary injunctions and temporary restarting orders are extraordinary remedies whose use have recently been on the rise. Success in getting a court to grant requires passing rigid procedural hurdles and satisfying high standards of proof. In this one hour program, we will review various factors to consider when obtaining preliminary injunctions and temporary restraining orders as well as discuss issues that should be considered prior to filing for injunctive relief. Injunctions can be useful tools in protecting assets and halting wrongdoing but, injunctive relief means only as much as the ability to enforce it.

Transcript

- [Dalziel] Hello, this is Chuck Dalziel from Dalziel Law Firm in Marietta, Georgia, and today we're gonna talk about injunctive relief. This is a area that not a ton of people do a lot of practice in, in the real world. There's much more of a volume of damage lawsuits including injury lawsuits and that sort of thing, and so, the bar for the injunctive relief is a small percentage of the overall. And there's a few reasons for that, and that even applies to large firms. And the reasons are that in these kind of situations, it's an emergency. And so if it's an emergency, what you're looking at is staying all night to prepare papers, garner fax, prepare affidavits, research briefs, et cetera, et cetera, et cetera. So, part of the design of this presentation is actually to give you practical hints. If you get one of the people that gets chosen to work on an injunctive case, I'm gonna give you a lot of stuff today that you'll have in your quiver where actually preparing the papers and doing all of the things that get you to the point where you're trying to obtain an injunction or resist an application for an injunction against your client. This is all gonna give you a big leg up. And I say what I said about who gets picked to do these? Because when I started practicing law in 1980, we were in the Apple Boom in Atlanta, and a big hotel, the Dinkler had been behind the Apple Boom, but they tore it down to build something else. It turned out they never did build something else, just a parking lot, even today. But at the time that I first started working, the parking in that hall was like two levels down, and of course it was very dark. And so this is sexist, I know, but the lawyers that I worked for didn't want any of the women have to stay down there that long. So, I was the one that got most of the all nighters to do the injunctive relief. And just as another tidbit that probably applies still today, a lot of the lawyers that were involved in these cases didn't want to go argue them themselves because in these situations there was a lot of emotional baggage attached to the case, and the client might be a little bit more disappointed if they lost the injunctive hearing than if they lost some other hearing. And so, in a lot of instances, I was asked to go down there by myself, either when I was like a second or third year associate to try to get the injunction. And I didn't think that my tenure there was all that strong or stable, and so that presented a practical dilemma to me. And the practical dilemma was, okay, how do I avoid disappointing the clients? And I discovered that the best way to do it was to actually ask the other side, when I was going down there to get an injunction, asked the other side to consent to it. And in a surprising number of cases, the opposing attorney was willing to consent to it. And that, I'm gonna talk about that a little bit later, but that was a very good tool that I had, a tool of trying to persuade opposing counsel just to consent to the relief that we wanted. And part of the reason or the argument that I would give them to consent is to say, "Well, what you're doing is causing us tremendous damage, and today the damage is only x like $1,000 or $10,000 or $100,000." Okay, but if you don't get enjoined, and this is gonna happen later if you beat the injunction, so let's say that you don't consent to the injunction, well, then our damage is in a year, year and a half, two years, three years, five years after this case has been going, will be $500,000, $1 million, $1.5 million, $2.5 million, et cetera." And so, in the cases where I was actually trying to get an injunction, in fact, if I lost, what I would do is call up... I would call up 'cause his email didn't exist then. But I'll call up the other lawyer and say, "Well, hey, congratulations, now you just made my damages worse." And so, that's kind of the mindset that you have to have if you're gonna be in the injunctive practice. So, let's start with our presentation. Okay, the use of injunctive relief seems to be on the rise. And you've seen all these cases about the election methods, rules, practices, and the injunctive relief has sought in that situation. And then there's been a very large increase over the last, say, 25, 30 years of cases, where somebody seeks to ban nationwide implementation of a federal law regulation that the plaintiffs disagree with. And that I think that probably happened in, like cases like the Affordable Care Act and other cases that involve policies that both the Trump and the Biden administration enacted. And there's an issue, and the issue to put it in a very small bowl so you can actually understand what I'm talking about. The issue is, we'll say, you file a suit in the Middle District of Georgia, and you go to the Courthouse in Athens, which is part of the Middle District, and this judge can enter an injunction that has nationwide effect. And there's a lot of commentators really on both sides of these issues that say that that really shouldn't be, that the one judge shouldn't be able to have the power to cause these nationwide implications. So that's something to keep in mind. But the more frequent injunctive cases are in other cases that aren't political, it's more in situations where, for example, people leave their employment study to a non-solicitation and non compete and nondisclosure agreement. They agreed not to take any trade secrets when they left, et cetera, et cetera, et cetera. And there were suits filed against those employees and sometimes the new employers to get an injunction that would prohibit them from possessing the confidential information of the former employer, and the trade secrets of the former employer would prohibit them from soliciting the clients, and in some cases, would prohibit them totally from competing with the former employer in a designated geographic area. And I went to a breakfast that the Atlanta Bar had about five or six months ago, and they had different people on a panel about these non compete cases. And one of the people that was on the panel was Judge Steven Grimberg, Grimberg I think his name is. And anyway, he said that he was very surprised. Somebody asked him, "Well, what was something that happened that surprised you a lot when you took the bench?" And what he said was the volume of these injunctive cases regarding these non-solicitation, non compete, nondisclosure agreements. And then also we have situations where we might seek injunctive relief for common law torts such as breach of fiduciary duty or tortious interference or tortious interference with business. And then we also have cases where injunctive relief is sought against fraudulent transfers of assets either before a suit or while the suit is pending. Then we have injunctions about real estate, for example, if you're encroaching into another person's property, want an injunction about that, that's down here in the bottom, you have injunction against trespass, or the maintenance of a nuisance, or the encroachment of an easement, or improper taking of water. And there's a big lawsuit between Georgia and Florida about how much water Georgia has taken out of the Chattahoochee before it gets to Florida. And that's based in part on the fact that the Apalachicola oyster beds are not as fertile as they once were, they claimed that it was related to the lack of fresh water coming in there. You have injunctions about road construction. You have injunctions about the effectuation of contested zoning decisions. You have situations where they're covenants, for example, in my neighborhood there's a shopping center. And the shopping center lease is generally what you would have is a covenant that says we won't let a similar business like your business as the tenant, lease space at a shopping center, you're gonna have exclusivity. But like in this shopping center nearby me now, there's actually two Greek/Mediterranean restaurants right beside each other, and I'm trying to figure out how in the world one of 'em has arrived to get the landlord enjoined from allowing the other one to have the business there. But those are some of the uses of the injunctions. And then up above I talk about, there's a uniform consumer protection statute, and Georgia's called the Fair Business Practices Act. And what you can get an injunction against here is communications that create a likelihood of a confusion or misunderstanding. And to get the injunction under this statute, you don't even have to have actual misunderstanding or confusion, the only thing that you have to have is a likelihood of those. And that's for the consumer cases there, the Fair Business Practices Act. And then for the commercial situation, they have the same thing, but it's different. The uniform to set the Trade Practices Act only allows injunctive relief against cease confusion and misunderstanding potentials. Whereas the Fair Business Practice Act, in addition to the injunction, you can actually get damages and even treble damages if the creation of the confusion was willful. So you have a lot of different plates or servings of food in the injunction buffet line, but under the core of it all is the injunction procedure, and that's generally what we're gonna talk about more today. Now, here's some more quick highlights of other uses of injunction. Sometime the Department of Justice will ask for an injunction to advance by major public interest or enforced governmental functions. There are federal statutes that specifically offer injunctive relief, one of them actually is Title VII. There is a compensatory damages provision in Title VII. But the primary relief that you get under Title VII is actually injunctive. And then in other instances, you have a statute that doesn't say specifically that you could get injunctive relief like the trade secret statute, that's a matter of state law, but there's also a federal trade secret statute. They actually provide especially for injunctive relief. But there's still other statutes that don't specifically say you're gonna get injunctive relief, but they're still used to getting injunction. And then you might have an injunction that would be issued to protect constitutional rights. In this case, Elgin v. Department of Treasury, Alito was talking about the tension between a government agency being given total control over a dispute as opposed to one harmed by the agency suing it for violating his constitutional rights. And Alito was of the mind that injunctive relief shouldn't be as available as others on the court. You have 1983, which allows injunctive relief against state actors for potential constitutional violations. There's a history of suing for injunctions against violations of equal protection. Plaintiffs can sue the enjoin statutory violations. And then sometimes injunctive relief is sought to restrain publication of information by the press, but that runs into the First amendment bar, so. What is an injunction? An injunction is a court order requiring a person to do or cease to doing a specific action. So if you're the lawyer, the first thing that you want to realize is that an injunction is a prohibition generally. So, in styling your case, that's what you wanna do is ask the court to prohibit people from doing things. There's actually case law that says that the injunction should not be mandatory, meaning that the injunction actually tells the person to do so. That injections it requires affirmative action will put the defendant in the place of not doing something. So you can actually word it where it's not mandatory, if you think about it. And the example that I gave you is the judge ordering the defendant to deliver confidential documents that he stole from the plaintiff. But the way that you do it so that it doesn't run into this mandatory injunction prohibition is you word it, "I forbid you to have any possession of plaintiff's confidential documents." So that's a big distinction that you need to know. And so like if you were a first timer preparing to go seek an injunction, what you would be wanting is to be seeking a prohibition. The injunction is generally a private criminal statute, Why do you want, as the plaintiff, the injunction? There are remedies for violation of the injunction that are semi-punitive. I said that when I did this slide yesterday when I was finishing the slides, I actually found a case where $52 million in fines for multiple violations of the injunction like 400 different violations by the United Mine Workers, that was seen as completely punitive. But what you have is, this particular defendant is cited to the injunction that arose out of this particular dispute and the defendant can be held in contempt. If this court's injunction in specific language against this defendant, prohibiting this defendant from doing things, if that's violated, then the defendant could be held in contempt, which is more bitter remedy than not having the judge have you under her thumb for 24 months while the case is going on. In federal court, you can have penalties for violating the injunction. One of 'em is coercive contempt, that's like civil contempt, and that's inaction to force future compliance. Then you also have criminal contempt, and what that is, we're not trying to get you to comply in the future, what we're doing is punishing you for past violations by fines or imprisonment or both. And then you also have another type of contempt, which is compensatory contempt. And in that situation, this is important analogous to the relief that you might get in a trade secret situation. In the trade secret situation, you might have 'em purge the trade secrets back under the trade secrets, but at the same time actually make the defendant pay all the money that they received by using the trade secret that they were forbidden to use. The premise of injunctions in civil disputes is that irreparable harm is occurring that money damages won't adequately compensate. The injunction is entered to preserve the status quo and the injunction is intended to force the situation to the place where the plaintiff gets what the plaintiff bargained for from the defendant. So that's sort of a supercharged way of enforcing specific performance of the contract. All right, so what does relief by contempt deliver primarily? Okay, it would deliver compensation in the form of money for harm. The court has concluded could not be compensated by monetary damages. Wait a minute. What we were actually saying a minute ago was that they got in the injunction because of irreparable harm which couldn't be compensated by monetary damages. But yet in the contempt situation, a lot of times you see these plaintiffs who just told the court that it was irreparable, now are saying, "Oh, we want money to compensate us for what happened." And now you have in a situation where the contract is gonna be specifically enforced by an injunction, the plaintiff's saying, "Why should they get what I pay for when the injunction was granted, and specifically when it was violated? And so I get monetary damages." Now the other thing that contempt does is it creates the possibility that the most punitive sanction imprisonment can follow the violation of the injunction. And later on I'm gonna talk about one of the issues about injunctions, which is that the judge who's the trial judge is hearing this, her decision is generally given very, very wide range. And the piece of discretion standard is flying to the injunction under the idea that the judge, the trial judge that heard the evidence has a better handle on it than the court of appeals. And so there's even law that says that the abusive discretion for reversal has to be quote unquote manifest. And so the judge who actually grants the injunction of the trial judge, they have tremendous power in this area. And in the '90s I did a lot of work moving stockbrokers from other firms to Morgan Stanley. We were moving from Merrill Lynch and Smith Barney other places. And actually what we would do is most of these people lived in Fulton County, Georgia. And so we would actually find out which judge was sitting on the bench during different weeks as the presiding judge. They had like 12 or 14, 20 judges that sat on the bench and had a list that you could obtain that says, "Okay, this week judge A's gonna be on the bench, this week, judge B's gonna be on the bench. This week judge C's gonna be on the bench." And we'd actually have the person move when judge C was on the bench, 'cause we knew that they were less likely to grant an injunction than A or B. Well, what's the instigator of possible relief for contempt? Okay, all right, so what I'm talking about really here and phrase I said, right? What I'm saying is how do you ask for possibly for contemp? You ask for a show cause hearing, forcing the defendants to show cause also why contempt is not justified. And that will allow for immediate discovery of occurrences immediately after the injunction was entered. As an aside, one of the things that you need to be aware of, this is not in the PowerPoint, so you might wanna write this down. When you're an agenda practice, a lot of times as part of the package that the plaintiff files, they file a motion for expedited discovery. Because like in federal court, no discovery's gonna start until you do the joint preliminary report and discovery plan. And Georgia, the discovery general wouldn't start up until 15 days or I should say 45 days after the answers been filed. All right, well, I said that wrong. The discovery that you can serve with the complaint has to be answered in 45 days after service of the complaint and the discovery. So it's 15 days after the complaint has to be answered. And so that immediate discovery is really key. And each case is if you want to get an injunction. You can also seek contempt not only against the defendant that you've got the injunction against, but also against other people than the named party in the lawsuit. Because the injunction generally covers other people working in active concert with the defendant. And so that's particularly important like in a non compete case because a lot of times the defendant, like particularly the defendant of a sole-owned businesses, who then wants to turn around and start another business, has his wife start a business or his son or his son-in-law or some friend of his, and the ideas the defendant's been enjoined is gonna be working in the shadows for the new company. But the Rule 65, that's where this comes from. Rule 65 specifically says that the injunction covers all these other people who are acting working in that of concert with the defendant. I'll talk about that later. Also, theoretically at least, other people besides the plaintiff could seek contemporary relief say in an contempt relief what I was trying to say. That would be in a situation where like you had an injunction against a nuisance granted to a neighboring property owner where others are also uniquely harmed by that nuisance. And the best example that I could come up with there is down there by Locust Grove where that outlet Mallism 75 South, there's a town right south of Locust Grove on 23, where basically what they were doing was they were turning manure into stuff that you could use in your yard as fertilizer, but the smell from the plant was horrendous. And so there was actually litigation trying to enjoin the operation of the plant, really. But in addition to the plaintiff who was trying to stop that all these other people who were uniquely harmed by the nuisance because they were neighbors as well, they wanted to get in on the accident trying to enforce the injunction in favor of themselves. So here now we're gonna talk about the procedure. So the procedure in the federal case is under Rule 65. And one of the things that I found out in the 43 years that I've been practicing is that people really don't get it about injunctions. There's a three-step process, there's a temporary restraining order and a preliminary injunction, and potentially a preliminary injunction under the federal procedure. And so a lot of times, or when I was a kid, 26 or 27-years-old at the law firm, I was told that so and so is seeking a TRO against our client. And we've been asked to go to the hearing and respond to it. And in actuality that didn't make a lot of sense to be saying it that way because Rule 65 sometimes place a temporary restraining order. Yes it does, but that is without notice to the defendant, there wouldn't be any hearing that I'd be called to go to on a temporary restraining order because the temporary restraining order is issued without written oral notice to the adverse party. And in order to get the TRO, what we call ex parte, that's what this is, is a TRO ex parte, you have to have specific facts in an affidavit or verified complaint that clearly show the immediate and irreparable injury. And that you have to show that that irreparable injury loss or damage is gonna occur even before the adverse party can be heard in opposition. And then you also have to say, well, I tried to notify the defendant, but I couldn't and we can't wait because this irreparable harm is so threatened and it's so real and it's so grievous that we gotta stop him before we can give him notice. So, if you get a temporary restraining order like this, you've gotten the temporary restraining order ex parte. I mean like if somebody goes down with a defendant's lawyer to a hearing and then styles their order as a temporary restraining order, they're doing it wrong. The temporary restraining order issued without notice, that's what this is, must state the date and hour it was issued, described the injury, and state why the injury was irreparable, has to state why the order was issued without notice and has to be promptly filed in the clerk's office and entered into the record. And it expires 14 days after it was entered. Unless before that time, the court for good cause extends it. And the reasons for the extension must be entered in the record. Okay, all right. Under the federal practice, if the order is issued without notice, then you have to have the motion for preliminary injunction at the earliest possible time. So that would generally be shorter than the 14 days that has to be set for earlier than that. It has to take precedence over all other matters except hearings on older matters of the same character. So basically you take 99.3% of the judge's caseload and throw that out, and then you're trying to schedule a hearing between maybe those one or two cases. At the hearing, the party who obtain the order must proceed with the motion, if the party does not, the court must dissolve the order. So, here are the practical considerations for the three step process. The FRCP, the Federal Reserve procedure, it deals primarily with the TRO and the preliminary injunction. If you look at the rule, you don't really see a subheading with like subheading pre and E or pre and F or whatever. There's really not anything about permanent injunction in Rule 65. And actually some people say because of that, that there really is no such thing as a permanent injunction that the only thing is a preliminary injunction that continues maybe beyond the end of the case. And the reason that you would wanna have your injunction continue after the case is resolved is that you can still get contempt even later, like five years later, you could come back in and say, well, this injunction had effect into the future and here in the future, now the defendant is violating it, so we wanna hold them in contempt. And this is supposed to be Rule 65 here. And so both the TRO and the preliminary injunction require security, that being a bond in an amount that the court considers property to pay the cost sustained by any parties who have been wrongfully enjoined or a restraint. So, what that means is that the rules acknowledge that if you are enjoying that you are likely damaged. And so in order to make sure that you're not penalized unfairly, if the injunction really shouldn't have been granted, there should be a bond to cover your possible damages. Now really what this means if you're a practitioner is that if you're in a case where they do get an interrogatory injunction against you or even a TRO that's miscast while you were there, what you wanna do is file a counterclaim for wrongful injunction. They say, why are you doing that? Well, the Rule 65 exactly says that we're expanding. That if you are enjoined that there are gonna be constant damages sustained by the party that was enjoined, it turns out that injustice shouldn't have been issued in the first place under the wall, then that means that your client was wrongfully enjoined and the other side is liable for the damages that the wrongful injunction caused. Most of the plaintiffs in their motion for a restraining order ask that they be relieved of the duty to post a bond. And in a lot of cases, maybe you can blame this on the law clerks, a lot of cases the core staff, they don't even realize that the rule actually specifically requires that a bond be posted and so they won't say anything at all, any order by the bond. But 65c says that if the judge was persuaded to give the injunction, I'm talking about now from the defendant stand point of getting it wrong, if the judge was persuaded to give the injunction, ultimately, the defendant can seek damages against the moving party for wrongful injunction. And like I said, this is a chip that few defendants in my experience play this chip, they don't make the wrongful injunction type one, but in most cases, the judge actually should be telling the party's why bond is not required But in most cases if they don't grant one. I don't say anything about it at all. They don't say I specifically considered whether to give a bond, and I decided that it wasn't necessary. But that's what the rule requires. I actually had a case about that like three or four years ago. If you do get a injunction on two days notice, the party who obtained the order without notice or shorter notice by the court, this is in more of a TRO type situation, the adverse party may appear and move to dissolve or modify the order. The court must then hear and decide the motion as property as justice requires. So, what I'm saying is if the order is styled as a TRO, even if you were there, it could be challenged with a motion to dissolve the TRO. You could file and request a hearing two days later after the order. And that would be 48 hours more in preparation for you to resist the order. And then if you do get it dissolved, then that puts you on offense as far as the wrongful injunction. Generally, if you have a preliminary injunction hearing in federal court, you're gonna have the taking of testimony. So if both sides have notice, you get a hearing order from the judge. So what that does then under federal procedure is it allows you as the attorney, you can sign subpoenas yourself. So you can subpoena to the hearing witnesses who have evidence, which will be part of and could be helpful. Okay, so now go back to the ancient days of the '90s again. And when I was working for Morgan Stanley, they didn't want me to represent anybody that was trying to get out of an injunction, but they had me work on certain cases where they won an injunction. And so in those situations, I would ghost write papers and get somebody else to actually argue the case. So in one case, one of our people had gone to Merrill Lynch, and Merrill Lynch's lawyer was a woman as a year ahead of me in law school is about five two maybe five, three. And so their client had taken a ton of documents. It was actually paper documents in those days. So, we actually started a notice to produce on them, which is the same thing as a subpoena evidence to a party. And so when we had the hearing, my friend had to bring a box full of documents that the person had taken to Merrill Lynch for Morgan Stanley, and it was a banker's box, but it was stuffed beyond full times two. So it was very heavy. And so she wanted the courtroom had the box, and then kind of threw it on the council table, and it was a big bang because it was so heavy, and that's when I won the case. So it's very important that you subpoena records that hearing regardless of what side you're on, subpoena witnesses who might help your side. We had another case where we were trying to get an injunction against a guy from Wells Fargo, and he had taken a lot of our customer information, and so we subpoena him to the hearing, got a testimony from him, was false, got a testimony from him that was false about the documents that he took. It turned out that later, Wells Fargo realized that he glide, and then they said he wouldn't have or wouldn't bear the expense for him to be a party to a unified defense. He had to get his own lawyer. The own lawyer was then put in position to correct his misrepresentations. He was fired, he's still out of the business. So the subpoena in that case was big time effective. And it's funds to just refer to the defendant as having contraband. In these types of cases, you also have spoliation of evidence considerations. And these can be used offensively if you're the plaintiff's lawyer. So again, at certain times, I was representing actually the stopper friend that wanted to sue the other party. And so in one of my situations, two of the guys went to Goldman. And so what I did was I called up Goldman after they left, and I had a real perky voice. I said to the secretary or the receptionist who answered the phone, I said, "I heard asked a wife come over to Goldman, would you please send me or give me their email address?" So they gave me their email address, and then I sent a real detailed and non-threatening just straight out stating about the considerations that would be applicable in the case about spoliation of evidence. And so, you would think that the computer that you sent the email to would be the computer they were using. And so, basically what we were doing was in those contacts we were telling to preserve all the emails and text messages and all the other items that they had to show to communication with the clients that they weren't supposed to solicit. And it had a really good effect to sort of embed that in their computer, and then have that embedded in a way where they couldn't delete the information that they were creating in their communications with their clients. And so that's a really good thing. In fact, when I got divorced, unfortunately against my will after 36 years of marriage, my wife told me about nine o'clock that she was getting a divorce. She told me where her lawyer was. And by noon that day I had actually delivered a spoliation letter in person to him. And that was one of the ways where I was able to get my divorce settled in a few months instead of years. It's best for the plaintiff not to draft a letter saying defendant should delete anything, okay? Because then you'd be in a situation where you'd be telling the defendants to spoliate evidence. And I had a case like that where a guy left my client and went to SunTrust, and he had documents that he used to create a solicitation to the customers he wasn't supposed to solicit. And he actually just went ahead and shredded the list after he sent the communications. So that was spoliation of evidence. So then, in one of my cases, what happened was that the other side obtained a purge order saying that nobody on the defendant's side could possess the information. But we were able actually to get that order vacated by saying that what you're requiring us to do is destroy evidence. So obviously, the court can't enter an order commanding us to destroy evidence. And one of the weird things about this is, is if the evidence is preserved, actually in this brokerage situation or in a lot of other non compete situations and maybe even some other situations, the purposes of getting the injunction is just to get extreme leverage on the other side, and as soon as the case is settled, that was the funny part about it in the brokerage case is we are actually dealing in a trading range of money that we paid when the people left. And in certain situations, plaintiffs or lawyers weren't smart enough to ask me to give the documents that we had back. And so in a lot of situations we took the position that now that we paid 'em off, that we didn't have to return the documents. So that was an interesting part of the injunction world. Sometimes if you're gonna file an injunction in this type of case, the customer relationship case, you have to have confidentiality agreements and orders. And these are pretty standard. One of the things I told somebody yesterday is after we entered these, I really had had a whole lot of situations where that was ever brought up again after the orders ended, there weren't any claims of violations or whatever. And so one of the practical things I would tell you is if you're in a case like this, I don't think that it's really necessary for you to fight like Stalingrad about what the confidentiality agreement or order says. It used to be that you could get stuff sealed and part of the idea was that a physical body was at the courthouse trying to look in a paper file, and an order or various documents or whatever were in an envelope where they couldn't be seen. But under the procedures now, it's a lot harder to get information sealed with all the federal court documents on PACER. And in Georgia, the state court documents on Peach Court and Odyssey. And so that makes a big... I mean like in one case I made a mistake, and the mistake was that we wanted to prohibit the other side from soliciting certain people on the list, and that list was actually attached to the purchase of business agreement that my client had used to buy the business. And so that made sense to file that, and the whole agreement, and then ask the court to enjoin the other side from soliciting those customers or clients, except for the fact that the whole idea was that that list was private, it had sort of a confidential or trade secret nature, which then would've been forfeited if you found the list in court situation where electronically anybody could see the list. And so that's actually a downside that the plaintiff for this type of litigation should be reminded of often. And that also applies to defendants. I had a case where I was gonna sit this guy in South Carolina for an injunction, and these stock brokers moves, they would actually get paid up front money to move on the presumption that their clients would ultimately follow them. And so it was worth it for the recruiting firm to pay the money. Well, in one case I had where my guy worked for Morgan Stanley and he went to Wells Fargo, he got a bonus check from Wells Fargo, and he actually put it in his account at Morgan Stanley. So, it's pretty clear that we knew that he moved at that point. It was actually kind of funny that he would do something that prudent. There's a traditional four element test for injunctive relief. You have to have irreparable injury or irreparable harm. The plaintiff is likely to succeed on the merits of the case ultimately. You balance the harms between the plaintiff and the defendant. And the balancing of interest comes out in the plaintiff's favor and the injunction will not harm the public interest. So, you have to have all of these elements to get an injunction if you're d defending the case, if the plaintiff doesn't prevail on any of the four, if they're not likely to succeed on the marriages, if harms not occurring, if the balance of interest is in favor of the defendant or if the injunction will harm the public interest. Any one of those four if three for four is good in baseball, but not in injunction practice, you gotta be four for four, you got about a thousand. This is in the 11th circuit. It basically repeats the same words, indifferent words, okay? And so, let's talk about the substantial likelihood of merits. So if you're the defendant, and you can establish that whatever claim the plaintiff has is questionable, they won't meet the substantial likelihood of success criterion and so they'll lose. So that was a situation in the Schiavo case of voluntary Schiavo. The patient in the hospital that the husband wanted to take off of life support. And the plaintiffs must show that they could prove all the elements of their claim. And so that's very important to think about when you're drafting the papers, whatever your cause of action is, you need to prove all the elements so you obviously need to please them. In some circles, the idea that you have a substantial likelihood of prevailing on the merits is the most important for the trial court to consider and considering the injunction. And that's from some of these cases that I cite here, but I also read later when I was doing the slides yesterday, that actually other courts, including the supreme court have also stated that really that irreparable harm is the most important factor. But I say here, as far as substantial likelihood of prevailing on the marriage, that a favorable decision on this point opens the gateway to an injunction, and an unfavorable decision closes the gate. And really that's as to all four of the elements. An unfavorable decision on one closes the gate to the injunction. Assume that a plaintiff terminates a contract. And under the contract, the defendant has right to use various things that the plantiffs had provided them in a franchise. In that type of situation, in order to get to the point where they might get an injunction, the plaintiff, McDonald's first has to prove that they had the right, that it was legal for them to terminate the contract because only then would these be unauthorized. So then another one is if you're suing on a restricted covenant, you have to prove that the contract is enforceable at the outset to obtain the injunction. And this is the one's an interesting case, this is another financial advisor case. And Bank of New York Mellon was represented by king of spawning. And so in the lower court, the people that had left Bank of New York Mellon had actually gotten the court to rule that the restrictive covenant was unenforceable and said, oh, couldn't be enforced at all. But there was a procuring opinion in the 11th circuit three to nothing that actually reversed the trial court's decision as to the enforceability. And the incident part about that was then it didn't remand. What it did is actually entered a specific direction to the district court to enter the preliminary injunction enforcing the covenant. So, the opinion on the substantial likelihood of prevailing on the merits is one that can vary. And I'm pretty sure that what I have read in, I think I'm not even saying this out, I hadn't research this yesterday, I'm pretty sure that either the granting of a preliminary injunction or the denial of a preliminary injunction is immediately appealable. If you're gonna appeal, you're gonna have to have an appealable order. And orders that don't resolve the entire case are generally regarded as not final, or not sufficiently final to be appealed, but there's an exception for these injunctive reliefs. In the Georgia courts, the four factors aren't the same. Yes, there is irreparable injury, and yes, there is a balancing of the interest, but it's not really the balancing of the interest as much as it's comparing what kind of injury would the plaintiff suffer if it's injunction is not granted, versus what kind of damage or injury would the defendant suffer if they were enjoined? And then you have the idea that substantially likelihood of prevailing on the merits, that's still a Georgia criteria, but it's really more forward-looking toward when you try the case at trial on those claims. And there's not really a balancing, or a comparison of the public interest under the Georgia procedure. What you wanna say if you're the defendant is that the injunction is contrary to the public interest and you really don't put your wrong interest up there to be considered. Georgia has a statute about injunctions, and there is a bit broader reason to grant an injunction under Georgia law where you're actually just going to the court and saying, we don't have an adequate remedy under law to protect our interests. And so the statutory focus is on preventing irritable harm from continuing, okay? That is coupled with the idea that in order to get an injunction, you have to tell the Georgia court and convince the Georgia court that the injunction will maintain the status quo. So, what that means is that the status quo before was that we weren't experiencing the damage that is being caused by the existing tort or acts now. And so we want the action stopped so that we'll return to the status quo, the quote unquote the status quo of not being injured. And so as the defendant, what you want to do, particularly these employment cases, but in other cases as well, is to argue that whatever the Georgia court plaintiff for the injunction, whatever relief they want, it upsets the status quo. And a lot of my cases, what we would argue is like if the person goes to Morgan Stanley and they used to be at Merrill Lynch, the status quo at that point was destroyed, and barring the employee from servicing the clients now at Morgan Stanley wouldn't restore the status quo. That wouldn't return the clients who had transferred their accounts to Merrill Lynch. So it was counterintuitive or counter law even to enter an injunction that would prohibit the person from service and the clients once they changed jobs. So the status quo concept is a big concept that you can use on either side, but particularly on the defendants side. The Georgia balance of convenience, excuse me, is that the balance must be in favor of the movement and the balance is tipped by defendants inflicting harm and hurting the plaintiff whilst their respective rights are being adjudicated. So the focuses on the fact that the harm is gonna continue, for like six months, eight months, 10 years while the case is pending, so we gotta stop it now. And in that kind of case, what the defendant is gonna say is two things. One, yeah, there's no harm that's legally recognized that's occurring, but not only that, if we have an injunction that's gonna disrupt the status quo. And the plaintiff sort of tries to convince it into a real simplistic construct, which is, well, I wasn't being hurt before, but now I am. So we needed to return to the status quo anti, which is I'm not being hurt by the defendant. The irreparable injury is injury that damages won't compensate. You have to create a situation that the loss as a conceptual matter is way bigger than simple damages. And you have to avoid arguments to the damages are countable. So there's the defendant again, like in these restrictive covenant cases. If it can be computed, like how much the commissions were lost in that sort of thing, the reason that we should then deny the injunction is there's no irreparable injury because you can have an accountant or somebody else calculate exactly the amount of damages that occurred. The federal balance of convenience, the court is to measure to possible injuries to plaintiff if the injunction is denied versus the possible injury to the defendant if the injunction is granted. And the court should be looking to minimize the injury to both parties. So like I said, the court has a very wide discretion as to far how they fashioned the injunction. So in this 1944 case, Yakus versus U.S., the Supreme Court is actually telling the judges below, "Hey, use your creativity to come up with an order that will actually limit the relief that the movement wants, but minimize the injury to the movement, and also crafts an order that minimizes the injury to the defendant." One of the ways that the plaintiff can say, okay, well, the balance of convenience tips in our favor is yeah, sure we're willing to pay the premium for a bond about the damage or to cover the finished damages if we're wrongfully enjoining him. And actually in that situation, you could argue that whatever the premium for the bond is would be saving legal fees by fighting over it or it would save the legal fees that are incurred by fighting over it won't. You could go in and say, as far as the balance of conveniences goes, hey judge, we're gonna post a bond. So a lot of these harms that the defendant is arguing, they're going to endure if they're enjoined, we've got a remedy for that. So, that's not really something that you should consider in denying the injunction. In this Weinberger case, the court did say that have to consider whether other remedies short of an injunction can enforce the right. But if there's a public interest, like in some of these political cases that I'm gonna talk about in a minute, the public interest is kind of given special deference or it has a lot more weight than whoever's on the other side. Some of the public interests that have been argued are the freedom of contract. And once parties have contracted enforcing contractual rights and obligations, and that's actually in the concept of the 11th circuit in this Mohr v. Bank of Mellon case, that's actually a public interest that we have a system where we have contracts and we have contracts that are enforced. You could have a public interest of enjoining criminal activity, enjoining a denial of a constitutional right. And then if you have sort of a creative situation, what you have to do is the plaintiff is actually say, well, if we deny the... this is how to do it. We deny the injunction, whoops. If we deny the injunction, what are the public consequences of that gonna be? Those consequences are gonna be rave. And so that's the reason that we need the injunction because we want the public to be able to avoid these horrible consequences that will occur if the injunction is denied. So irreparable harm, let's just try to come up with some real concrete examples. In this situation, these people are life insurance agents and actually Holland is his ringleader, but he's got other people here. So they left and they took a trade secret list of the clients, and basically what they did was they taught a lot of the people that they'd been dealing with before that senior life was going out of business. And so they needed to buy replacement policies from new insurance companies. And so you say, okay, how's is that irreparable harm? Well, the irreparable harm is that senior life, if they canceled their policies with senior life, they would potentially lose the customers permanently to the other insurance companies that their former employees were selling now. And so the court in these types of situations, they need to be shown a significant loss, like a permanent loss of the customers or a loss of a constitutional right, but that sort of thing. And then what you need to do is to try to get the court to enter an order that'll stand up under the manifest, or excuse me, the abusive discretion standard non appeal. But the great part about it is if you get an injunction, or actually I guess if you get the injunction in 90 to one and if situation the plaintiff appeals to the denial of the injunction, the decision's not gonna be reversed unless the abusive discretion is kind of clear. The court used the word manifest. In the phone deregulation situation, basically you had Bell South and MCI. And the FCC entered an order that basically would allow Bell South not to let any more of its customers go to other carriers. And the way that that would happen is that FCC basically said that they wouldn't be required to offer new contracts for access to assist them through other carriers like MCI. Well, the Georgia Public Service Commission said, "Hahaha, we're gonna force you to offer new contracts for access to your system." Well, Bell South went to federal court and they got a preliminary injunction, and they actually came up, I guess with evidence of speculative in the future computations of how many customers they would lose if they were forced to follow the Georgia Public Service Commission order instead of the FCC order. And the number that they came up with just 3,200 customers per week, and the 11th circuit held that that was irreparable. And if they had, basically this case boils down to either Bell South or MCI's gonna lose the customers, and the court would've had to endorse the practices that the FCC condemned, which the Public Service Commission endorsed in their contrary order. And so the court basically said, "Okay, we're gonna follow the FCC order." Although they didn't really do it like in supremacy. And I said this before, the lack of any of the elements justifying an injunctions grounds to deny it, okay? In this Siegel v. LePorecase, which was related to Bush v. Gore, they actually said that the irreparable injury is the absolute necessity for an injunction to be granted. No irreparable harm, no injunction. So actually the Bush candidates and the voters were on the plaintiffs in this Siegel v. LePore. And so they said there's no irreparable injury to either of y'all because Bush and Cheney had been certified already as the winners of the Florida electoral votes. And so this manual recount that they wanted to enjoin the horse was already in the barn, not out of the barn, the horse was in the barn, they'd been declared the winners. So there wasn't any injury that would justify an injunction to enjoin the manual recount. And the plaintiffs had already been allowed to vote and the votes were counted. So there was no immediate injury to them at all, much less irreparable harm. And these kind of concepts were also applied in the Trump lawsuit in addition to the Trump lawsuits, plural. In addition to the standing issues. Okay, interesting. A violation of a constitutional right is not per se irreparable harm. In this case in 1990, they held that even if there wasn't violation of equal protection, that wasn't necessarily irreparable harm. But to a certain extent that applies context by context. And so I mentioned this abortion case. Obviously this abortion case is not as ethical anymore because of Dobbs, but Lewis Morgan, who was a older judge who was down in Newnan, he was on the 11th circuit, he actually wrote his opinion, and this was about an abortion clinic where the city of Deerfield Beach didn't wanna allow an abortion clinic in their town. And Judge Morgan on behalf of the old 5th Circuit, Unit B, which is the 11th circuit now held the clinic, could force the issuance of the license. And interesting to me at least they really didn't have a constitutional right to have a clinic. But he said that they could assert the constitutional rights that Roe had recognized to get the injunction. And he used a phrase, which I can't even pronounce, "Just Tertii standing." Where the clinic is actually asserting the rise of non parties to have their sanctions or stand, excuse me. There is a law that says if you are losing a First Amendment, freedom, freedom amendment periods of time, that that is an irreparable injury that would justify the granting of preliminary injunction. In a political situation, and the injury would be irreparable if it cannot be undone through monetary remedies. If the constitutional right of privacy to abort is at stake before the denial of that right would be irritable harm both to the patient and the doctor. And so basically, like just Morgan judge anybody who's hearing these injunctive cases, particularly in a political situation where you have differing opinions like you have an abortion, it's like one man sitting is another man's floor and the primacy of the abortion, right? Very just to judge. And so you could get a lot of inconsistent decisions in a politically charged area like abortion. This is a case about a first amendment situation where Rubenstein is a member of the Florida Bar and he wants to advertise his previous results. And the Florida Bar went kind of up and down during the fact part of this case and said you could advertise prior results, and then ultimately changed their mind and said, "No you can't." And so at that time River Senators already invested a lot of money in an advertising campaign. It was gonna count his previous results. And so when he sued in the southern District of Florida, court wrote he had a constitutional right, the First Amendment right, free speech to advertise his right. And the loss of that right, even for a minute was irreparable injury, so the Florida Bar were the ones enjoined. So you have injunction relief in other contexts like Title VII relief, as I said before, is largely injunctive. And that this is one area where they mandatory injunction is more likely 'cause they can order higher, they can order reinstatement, order restoration of benefits or if the employer and the employee just hate each other. And that's evidence front of the record, they can fashion other equitable relief like front pay. And recently, as far as another injunctive relief, another contact, the Houston County health plan had specifically by commissioner, I believe commissioner vote voted to exclude payment for transgender surgery. But it was a transgender deputy in the department. And upon consideration of case, Judge Treadwell down there, who's actually a former colleague of mine at Kirkpatrick, he ruled that the Houston County health plan had to pay for that. This is real important on Rule 65 Quirks State v. Federal. This is real important. The Rule 65 Quirks state and federal, we talked about the three stages of injunctions. We talked about the fact that the Georgia injunction, you should protect this status quo. And if it is gonna alter the status quo should be denied. The best idea if you're the movement is to draft a proposed injunction. Take it with each to the hearing, then tell the court. I want this exact injunction that I've already prepared for the court entered. And if you do it that way, like I said, in a lot of instances, the defendant will actually consent to the injunction, and it relieves the court if you want the injunction of facts trying to figure out how to draft it. And then the best part about that is if they do violate it, then you can argue to the court, well, hey, they agree to it. So obviously, they're in contempt. There's no issue about it being too ambiguous. If you're opposing the granting the injunction, that's the first thing you do is you argue if the plaintiff doesn't bring a proposed daughter, that they shouldn't get the injunction entered. And you try to get an in-person hearing scheduled with the witnesses, they won't be prepared like from depositions and other things. And you can get a lot more information out of them at these emergency hearings. And then argue for sure that there are several things wrong with the proposed injunction. And the best way to do that is actually to take the proposed order if the other side has submitted it, and actually point the defects out to the court while you're reading. The order has to have these findings that the verified complaint shows immediate irreparable injury. Loss or damage will result to the movement before the adverse party can be heard in opposition. And you recite the efforts to give notice. And then you have to actually have these findings in the federal court that are very similar. And you just need to look at 9-11-65 as far as if I could turn to mention the TRO and federal court's 14 days, in Georgia, it's about 30 days. This is a big point. If you're gonna draft an injunction, you don't refer to the complaint or another document like say a contract with a restrictive covenant in it. And the reason is because the order cannot be referring by stat, by rule, or by statute in Georgia, you can't refer to the complainant document or another document by the rule. And so it's error if they do it that way. And you must actually state what the order is restraining. Has to be specific 'cause it's a private criminal statute. The injunction is binding on all these people, and it's a very broad list. And it includes as a dry neck clause, anybody inactive concert or participation. We have civil contempt and we have criminal contempt. The purpose of this civil contemp is to coerced society of the injunctions to comply with it. And so they have to have the explicit notice of what is prohibited, and that's required before they can be held in contempt, which is a good reason, like I said, to get the other side, to consent to the injunction. And you say, well, they know what they consented to. You can find contempt objectively, but you can also find it subjectively when the offender acts in bad faith. But the defendant really can't say, well, gosh, I acted in good faith, I'm not in contempt. That would only go to the mitigation of the consequences of the violation of the order. This case, UMW v. Bagwell is the case I mentioned before. We had 400 violations of the labor injunction, $52 million in fines payable to Commonwealth of Virginia. And the court said that this was a punitive injunction, so it was criminal. And if it's a criminal injunction, then criminal intent is a crime. And you get all of the constitutional prohibitions that you would get in a criminal case that are sitting here on the screen. And so whether the content that you're pursuing a civil criminal is a big issue. And once a fine is issued, you can say that, no, that was just coercive. In certain situations, like in a divorce, if you're ordered to pay child support, you can actually be put into jail and have somebody else be required to pay your child support to get you outta jail. And a major point of course of contempt remedies is that they could be reduced by compliance in the future, but if that's not the case, it's a criminal penalty, all right? And so here's the last thing, and this sort of goes to the judge's discretion. Okay, so why would you get criminal rights in a contempt proceeding involving judge's order or an injunction that you violated? Well, the reason is because the judge has such broad, broad power, and also because a lot of times the actions that are in contempt are out of court. They're happening in other places of Virginia in that particular case. So the court didn't have any personal knowledge of the contact to say you have to have disinterest fact finding. And so the UMW was actually entitled to a jury trial in addition to all of its other criminal proceeding rights. So I think I actually went over just a bit, but that's all I have now. And so injunction practice is fun. If you are doing that, you get to bill a lot of hours in a short time. So it's also prideful. So, hope you enjoy that part of your practice as you move forward. If I can ever help you, let me know.

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CD
Charles Dalziel
Principal
Dalziel Law Firm

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