Preliminary Injunctions, Temporary Restraining Orders
and Declaratory Judgments
Jerry Brown
January 25, 2012
Preliminary Injunctions, TROs and Declaratory
Judgments
 Requests for emergency or non-monetary
relief:
-Preliminary Injunctions
-Temporary Restraining Orders
-Declaratory Judgments
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Preliminary Injunctions, TROs and Declaratory
Judgments
 Often, a petitioner will request all of them.
-Why?
 Differences between them, strategic
advantages of each.
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Preliminary Injunctions and TROs under Illinois Law
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735 ILCS 5/11-102 (Preliminary Injunctions)
735 ILCS 5/11-103 (TROs)
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Preliminary Injunctions and TROs
 FRCP 65(a) – (Preliminary Injunctions)
 FRCP 65(b) – (Temporary Restraining
Orders)
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Purpose of Preliminary Injunctions and TROs
 Preserve the “Status Quo.”
 The “Status Quo” is the “last actual,
peaceable, uncontested status preceding
the pending controversy.” (Black's Law
Dictionary 1410 (6th ed. 1990)).
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Mandatory and Prohibitory Orders
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Mandatory orders require that parties perform
certain specified acts.
Prohibitory order require that parties refrain from
performing certain specified acts.
Mandatory orders are automatically stayed when
an appeal is pending. Prohibitory orders are
not.
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Mandatory and Prohibitory Orders, continued
In some cases it may be unclear whether
an order is mandatory or prohibitory.
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Elements for Preliminary Injunctions and TROs
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Clearly ascertainable right in need of protection
Irreparable harm
Lack of adequate remedy at law
Likelihood of success on the merits
Balancing of hardships
Courts will consider public policy if relevant.
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Differences Between Preliminary Injunctions and TROs
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TROs can be issued on an ex-parte basis; Preliminary
injunctions cannot.
TROs initial duration is limited (10 days in state court; 14
days in federal court) (TROs however can be extended
beyond initial term).
Preliminary injunctions not subject to preset limit in
duration.
TROs typically followed by preliminary injunction.
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Reasons for Choosing Between Preliminary Injunctions
and TROs
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If you cannot get timely notice to opposing party, TRO
may be best choice.
If you fear that if given notice, the opposing party may
accelerate course of conduct to moot controversy and
cause irreparable harm before being bound by court
order, TRO may be best choice.
If it is feasible to give notice, preliminary injunction may
be best choice.
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Reasons for Choosing Between Preliminary Injunctions
and TROs
 Preliminary injunction has no preset
duration.
 No need to move for extension of order,
unlike TRO.
 Courts disfavor ex-parte proceedings.
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Preliminary Injunctions and TROs

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A trial court has substantial discretion in deciding
whether to grant or deny a preliminary injunction or TRO
and that determination will not be disturbed on appeal
absent an abuse of discretion.
There is no right to a jury trial for an injunction or TRO.
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Bond Requirement
 Under Illinois law, the court, in its
discretion, may require the posting of a
bond before entering a preliminary
injunction or a TRO. 735 ILCS 5/11-103
 Under federal law, bond is required for
preliminary injunctions and TROs. FRCP
65(c).
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Bond requirement, continued

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Claims on bond by a party wrongfully enjoined limited to
bond amount.
If a party disagrees with the bond amount, it can appeal.
The standard on review is abuse of discretion by the trial
court.
A party who fails to raise issue of bond during hearing
before trial court waives it.
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Bond Requirement, continued
 Clients may not wish to bear expense of
appealing trial court bond decision.
 At hearing, be prepared to vigorously
argue issue of bond.
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Appeal of Preliminary Injunctions and TROs
 Adverse rulings on preliminary injunctions
or TROs are subject to interlocutory
appeal.
 Illinois law – Illinois Supreme Court Rule
307(a), (d).
 Federal law – 28 USC § 1292
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Notice Requirements for Preliminary Injunctions and
TROs
 Illinois Supreme Court Rule 11
 Hand delivery
 U.S. Mail
 Commercial courier
 Facsimile
 E-mail not explicitly authorized
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Notice Requirements for Preliminary Injunctions and
TROs
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Federal law
FRCP 5
Hand delivery
U.S. Mail
Electronic means, if other party has consented in writing
Any other means to which the other party has consented
in writing
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Notice Requirements for Preliminary Injunctions and
TROs
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Federal TROs anticipate oral notice (FRCP 65(b)(1))
Other methods of notice may run risk of technical noncompliance, but may more effectively achieve purpose of
notice provision.
Consider party receiving notice of preliminary injunction
by e-mail without consent. Is the party likely to disregard
the notice in hope of arguing later that notice was
defective?
Check local rules.
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What is an Irreparable Harm?
 Party cannot be adequately compensated
in damages or when damages cannot be
measured with any certainty.
 Violations of constitutional rights, however
brief, usually qualify as irreparable harm.
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Lack of Adequate Remedy at Law
 Money damages
 Other legal remedies
 Ejectment
 Replevin
 Mandamus
 Prohibition
 Habeas corpus
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Balance of Hardships
A court will compare the hardship to the
petitioner if injunctive relief is denied to the
hardship to be suffered by the respondent
if injunctive relief is granted.
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Public Policy
The court will examine whether relevant
public policies are implicated in the
granting or denial of injunctive relief.
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Likelihood of Success on the Merits
To show a likelihood of success on the merits, so as to
support a request for a preliminary injunction or a TRO, a
party does not have to meet the same burden of proof
that is required at the final hearing.
Rather, a plaintiff need only raise a fair question as to
the existence of the right which he or she claims and
lead the court to believe that he or she will probably be
entitled to the relief requested if the proof sustains his or
her allegations.
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Assuming Relief is Granted
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Pay close attention to the language of the order – make
sure that the order is clear, specific and capable of
enforcement.
Ambiguity, over breadth and impossibility of performance
or compliance can be fatal to efforts to enforce injunctive
orders.
People ex rel. City of Chicago v. Le Mirage, Inc.
2011 WL 5600509 (1st Dist. 2011).
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Enforcement of Order
 Contempt
 Rule to show cause
 Civil contempt/criminal contempt
 Contempt sanctions
 Collateral Bar Rule
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Declaratory Judgments
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Illinois law (735 ILCS 5/2-701)
Federal law (FRCP 57)
Purpose of declaratory judgment
To allow the court to address a controversy a step earlier
than normal once a dispute has developed, but before
the parties take steps that would expose them to claims
for damages or other relief.
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Declaratory Judgments
 A declaratory judgment action considered
neither a legal action nor an equitable
action.
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Declaratory Judgments
 Elements to be pleaded:
 (1) tangible legal interest;
 (2) facts indicating that the defendant's
conduct is opposed to those interests; and
 (3) an ongoing actual controversy between
the parties which is likely to be prevented
or redressed by court action.
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Declaratory Judgments
The decision to grant or deny declaratory
relief is within the sound discretion of the
trial court, and the trial court's
determination will not be reversed absent
proof of an abuse of discretion.
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Declaratory Judgments

The Federal Declaratory Judgment Act was enacted to
provide an alternative to the remedy of injunctive relief,
to be used to challenge the constitutionality of state
criminal statutes in cases where injunctive relief would
be unavailable. Under the Declaratory Judgment Act,
declaratory relief may be available even if an injunction
is not allowed.
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Declaratory Judgments
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Why would a party seek a declaratory judgment instead
of a preliminary injunction or a TRO?
In some cases, it may be easier to establish jurisdiction
(for preliminary injunctions and TROs challenging
statutes, a court may conclude that there is no standing
until the statute has already been violated).
No need to show “irreparable harm.”
No bond requirement.
No balancing of hardships.
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Declaratory Judgments
 Declaratory judgments not enforceable by
contempt power;
 Declaratory judgment does not, by its
language, directly prohibit or compel
conduct, and may therefore fail to
preserve status quo.
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