Wikipedia

Injunction

(Redirected fromPreliminary injunction)
For protection orders (family law and harassment), seeProtection order.

Aninjunctionis anequitable remedy[a]in the form of a specialcourt orderthat compels apartyto do or refrain from specific acts.[1]"When acourtemploys the extraordinary remedy of injunction, it directs the conduct of a party, and does so with the backing of itsfull coercive powers."[2]A party that fails to comply with an injunction faces criminal orcivil penalties,including possiblemonetarysanctions and evenimprisonment.They can also be charged withcontempt of court.

Rationale

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The injunction is an equitable remedy,[3]that is, a remedy that originated in the Englishcourts of equity.Like other equitable remedies, it has traditionally been given when a wrong cannot be effectively remedied by an award of money damages. (The doctrine that reflects this is the requirement that an injunction can be given only when there is "no adequate remedy at law." ) Injunctions are intended to make whole again someone whose rights have been violated. Nevertheless, when deciding whether to grant an injunction, courts also take into account the interests of non-parties (that is, the public interest). When deciding whether to give an injunction, and deciding what its scope should be, courts give special attention to questions of fairness and good faith. One manifestation of this is that injunctions are subject to equitable defenses, such aslachesandunclean hands.[4]

Injunctions are given in many different kinds of cases. They can prohibit future violations of the law, such as trespass to real property, infringement of a patent, or the violation of a constitutional right (e.g., the free exercise of religion). Or they can require the defendant to repair past violations of the law.

An injunction can require someone to do something, like clean up an oil spill or remove aspite fence.Or it can prohibit someone from doing something, like using an illegally obtained trade secret. An injunction that requires conduct is called a "mandatory injunction." An injunction that prohibits conduct is called a "prohibitory injunction."[5]Many injunctions are both—that is, they have both mandatory and prohibitory components, because they require some conduct and forbid other conduct.

When an injunction is given, it can be enforced with equitable enforcement mechanisms such as contempt.[6]It can also be modified or dissolved (upon a proper motion to the court) if circumstances change in the future.[7]These features of the injunction allow a court granting one to manage the behavior of the parties. That is the most important distinction between the injunction and another non-monetary remedy in American law, thedeclaratory judgment.[8]Another way these two remedies are distinguished is that the declaratory judgment is sometimes available at an earlier point in a dispute than the injunction.[8]

Worldwide

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Australia

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In the state ofNew South Wales,a court may grant an apprehended violence order (AVO) to a person who fears violence, harassment, abuse, orstalking.[9]The order prohibits the defendant from assaulting, harassing, threatening, stalking, or intimidating the person seeking the order. Other conditions may be included, such as a prohibition against contacting the person or attempting to find the person online.[10]A court may issue the order if it believes a person has reasonable grounds for their fears or has no reasonable grounds for their fears. Non-compliance may result in the imposition of a fine, imprisonment, or both, and deportation.

Turkey

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Interim injunctionsare a provisional form of injunctive relief, which can compel a party to do something (mandatory injunction) or stop it from doing something (prohibitory injunction).[11]

A plaintiff seeking aninterim injunctionmust establish that he is likely to succeed on the merits, that he is likely to suffer severe harm in the absence of preliminary relief, and that an injunction is in the public interest.[12]

In Turkish law,interim injunctionis an extraordinary remedy that is never awarded as of right. In each case, courts balance the competing claims of injury and consider the likely hardship on the defendant.[11]

United States

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History

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Injunctions have been especially important at two moments in American history.

First, in the late nineteenth and early twentieth century, federal courts used injunctions to break strikes by unions. For example, after theUnited States governmentsuccessfully used an injunction to outlaw thePullmanboycott in 1894 inIn re Debs,employers found that they could obtainfederal courtinjunctions to ban strikes and organizing activities of all kinds byunions.These injunctions were often extremely broad; one injunction issued by a federal court in the 1920s effectively barred theUnited Mine Workers of Americafrom talking to workers who had signedyellow dogcontracts with their employers. Unable to limit what they called "government by injunction" in the courts, labor and its allies persuaded theUnited States Congressin 1932 to pass theNorris-LaGuardia Act,which imposed so many procedural and substantive limits on the federal courts' power to issue injunctions that it effectively prohibited federal court from issuing injunctions in cases arising out of labor disputes. A number of states followed suit and enacted "Little Norris-LaGuardia Acts" that imposed similar limitations on state courts' powers. The courts have since recognized a limited exception to the Norris-LaGuardia Act's strict limitations in those cases in which a party seeks injunctive relief to enforce thegrievancearbitrationprovisions of acollective bargainingagreement.

Second, injunctions were crucial to the second half of the twentieth century in the desegregation of American schools. Federal courts gave injunctions that carried out the command ofBrown v Board of Educationto integrate public schools in the United States, and at times courts took over the management of public schools in order to ensure compliance. (An injunction that puts a court in the position of taking over and administering an institution—such as a school, a prison, or a hospital—is often called a "structural injunction".)

Injunctions remain widely used to require government officials to comply with the Constitution, and they are also frequently used in private law disputes about intellectual property, real property, and contracts. Many state and federal statutes, includingenvironmental statutes,civil rights statutesandemployment-discrimination statutes,are enforced with injunctions.

InGrupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc.(1999), the Supreme Court stated that the scope of federal injunctive relief is constrained by the limits on equitable remedies that existed in the EnglishCourt of Chanceryaround 1789.

Forms

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Injunctions in the United States tend to come in three main forms: temporary restraining orders, preliminary injunctions and permanent injunctions.[13]For both temporary restraining orders and preliminary injunctions, the goal is usually to preserve the status quo until the court is able to decide the case.

Temporary restraining orders
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A special kind of injunction that may be issued before trial is called a "temporary restraining order" or TRO. A TRO may be issued without notice to the other party or a hearing. A TRO will be given only for a short period of time before a court can schedule a hearing at which the restrained person may appear and contest the order. If the TRO is contested, the court must decide whether to issue a preliminary injunction. Temporary restraining orders are often, but not exclusively, given to prevent domestic violence, stalking, sexual assault, or harassment.

Preliminary injunctions
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Preliminary injunctions are given before trial. Because they are issued at an early stage, before the court has heard the evidence and made a decision in the case, they are more rarely given. The requirements for a preliminary injunction tend to be the same as for a permanent injunction, with the additional requirement that the party asking for the injunction is likely to succeed on the merits.[14]

Permanent injunctions
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Permanent injunctions are issued after trial. Different federal and state courts sometimes have slightly different requirements for obtaining a permanent injunction. The Supreme Court enumerated the traditional four-factor test ineBay Inc. v. MercExchange, L.L.C.as:[15][16]

  1. the plaintiff has suffered irreparable injury;
  2. remedies available at laware inadequate to compensate that injury;
  3. considering the balance of hardships between the plaintiff and defendant, aremedy in equityis warranted; and
  4. the public interest would not be disserved by an injunction.

The balance of hardships inquiry is also sometimes called the "undue hardship defense".[17]A stay pending appeal is a mechanism allowing a losing party to delay enforcement of an injunction while appeal is pending after final judgment has been granted by a lower court.[18]: 871 

Antitrust

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The DOJ and the FTC have investigated patent holders in the United States for seeking preliminary injunctions against accused infringers ofstandard-essential patents,or patents that the patent holder must license onreasonable and non-discriminatory terms.[19]There is an ongoing debate among legal and economic scholars with major implications for antitrust policy in the United States as well as in other countries over the statutory limits to the patent holder's right to seek and obtain injunctive relief against infringers of standard-essential patents.[20]Citing concerns of the absence of competition facing the patent holder once its technology is locked-in to thestandard,some scholars argue that the holder of a standard-essential patent should face antitrust liability when seeking an injunction against an implementer of a standard.[21]Other scholars assert that patent holders are not contractually restrained from pursuing injunctions for standard-essential patent claims and that patent law is already capable of determining whether an injunction against an infringer of standard-essential patents will impose a net cost on consumers, thus obviating the role of antitrust enforcement.[22]

United Kingdom

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Interim injunctions

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Interim injunctions orinterim ordersare granted as a means of providing interim relief while a case is being heard, to prevent actions being implemented which potentially may be barred by a final ruling.[23]

Super-injunctions

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See also:2011 British privacy injunctions controversy,Super-injunctions in English law,andInterdicts in Scots law

In England and Wales, injunctions whose existence and details may not be legally reported, in addition to facts or allegations which may not be disclosed, have been issued; they have been informally dubbed "super-injunctions".[24][25]

An example was the super-injunction raised in September 2009 byCarter-Rucksolicitors on behalf of oil traderTrafigura,prohibiting the reporting of an internal Trafigura report into the2006 Ivory Coast toxic waste dumpscandal. The existence of the super-injunction was revealed only when it was referred to in a parliamentary question that was subsequently circulated on the Internet (parliamentary privilegeprotects statements by MPs in Parliament which would otherwise be held to be in contempt of court). Before it could be challenged in court, the injunction was varied to permit reporting of the question.[26]By long legal tradition, parliamentary proceedings may be reported without restriction.[27]Parliamentary proceedings are covered byabsolute privilege,but the reporting of those proceedings in newspapers is only covered by qualified privilege. Another example of the use of a super-injunction was in a libel case in which a plaintiff who claimed he wasdefamedby family members in a dispute over a multimillion-pound family trust obtained anonymity for himself and for his relatives.[28]

Roy Greensladecredits the former editor ofThe Guardian,Alan Rusbridger,with coining the word "super-injunction" in an article about the Trafigura affair in September 2009.[29]

The term "hyper-injunction" has also been used to describe an injunction similar to a super-injunction but also including an order that the injunction must not be discussed with members of Parliament, journalists, or lawyers. One known hyper-injunction was obtained at the High Court in 2006, preventing its subject from saying that paint used in water tanks on passenger ships can break down and release potentially toxic chemicals.[30]This example became public knowledge in Parliament under parliamentary privilege.[31]

By May 2011,Private Eyeclaimed to be aware of 53 super-injunctions and anonymised privacy injunctions,[32]thoughLord Neuberger'sreport into the use of super-injunctions revealed that only two super-injunctions had been granted since January 2010. Many media sources were wrongly describing allgagging ordersas super-injunctions.[33]The widespread media coverage of super-injunctions led to a drop in numbers after 2011; however four were granted in the first five months of 2015.[34]

European Union

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Dynamic Injunction

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Injunctions defined by theEuropean Commissionas

injunctions which can be issued for instance in cases in which materially the same website becomes available immediately after issuing the injunction with a different IP address or URL and which is drafted in a way that allows to also cover the new IP address or URL without the need for a new judicial procedure to obtain a new injunction.[35]

Live Blocking Injunction

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An injunction described by the European Commission as allowing the repeated blocking of a website every time a live broadcast is in progress. These injunctions are generally used during live sporting events.[35]

See also

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Notes

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  1. ^It is sometimes also available as alegal remedy,known as a "legal injunction" or "injunction at law." In that case, injunctive relief would have been extended to law either by statute or through common-law courts borrowing fromequity.

References

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  1. ^28 U.S.C.§ 2342( "Thecourt of appeals... has exclusivejurisdictionto enjoin, set aside, suspend (in whole or in part), or to determine the validity of.... ");8 U.S.C.§ 1252(f)( "Limit on injunctive relief');Jennings v. Rodriguez,583 U.S. ___, ___,138 S.Ct. 830,851 (2018);Wheaton College v. Burwell,134 S.Ct. 2806,2810-11 (2014) ( "Under ourprecedents,an injunction is appropriate only if (1) it is necessary or appropriate in aid of our jurisdiction, and (2) thelegal rightsat issue are indisputably clear. ") (internal quotation marks and brackets omitted);Lux v. Rodrigues,561 U.S. 1306,1308 (2010);Correctional Services Corp. v. Malesko,534 U.S. 61,74 (2001) (stating that "injunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally." );Nken v. Holder,556 U.S. 418(2009); see alsoAlli v. Decker,650 F.3d 1007,1011 (3d Cir. 2011);Andreiu v. Ashcroft,253 F.3d 477,482-85 (9th Cir. 2001) (en banc).
  2. ^Nken v. Holder,556 U.S. 418Archived23 November 2018 at theWayback Machine,428 (2009) (citation and internal quotation marks omitted).
  3. ^Weinberger v. Romero-Barcelo, 456 U.S. 305, 311 (1982).
  4. ^Bray, Samuel (2014). "A Little Bit of Laches Goes a Long Way: Notes on Petrella v. Metro-Goldwyn-Mayer, Inc".Vanderbilt Law Review En Banc.67:1.SSRN2376080.
  5. ^Dobbs, Dan (1993).Law of Remedies: Damages—Equity—Restitution(2 ed.). St. Paul, Minnesota: West Publishing Co. p.224.ISBN0-314-00913-2.
  6. ^International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821 (1994).
  7. ^Jost, Timothy Stoltzfus (1986). "From Swift to Stotts and Beyond: Modification of Injunctions in the Federal Courts".Texas Law Review.64:1101.
  8. ^abBray, Samuel (2014). "The Myth of the Mild Declaratory Judgment".Duke Law Journal.63:1091.SSRN2330050.
  9. ^"New South Wales – Apprehended Violence Orders".National Council of Single Mothers and Their Children. Archived fromthe originalon 11 February 2011.Retrieved26 September2010.
  10. ^"Are you applying for an AVO?".Legal Aid New South Wales. Archived fromthe originalon 22 October 2015.Retrieved2 August2016.
  11. ^abZeldin, Wendy (30 December 2015)."Constitutional Court Rulings on" Reasonable Suspicion "in Criminal Procedure Code".Library of Congress.Retrieved28 December2020.
  12. ^Baysal, Pelin (3 January 2019)."Litigation and enforcement in Turkey: overview".Westlaw.Retrieved28 December2020.
  13. ^"Understanding Injunctions".Insights.American Bar Association. Winter 2014.Retrieved6 September2017.
  14. ^"Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008)".Google Scholar.Retrieved6 September2017.
  15. ^"eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006)".Google Scholar.Retrieved6 September2017.
  16. ^"A.W. Chesterton Co., Inc. v. Chesterton, 128 F.3d 1 (1st Cir. 1997)".Google Scholar.Retrieved6 September2017.
  17. ^Laycock, Douglas (2012). "The Neglected Defense of Undue Hardship (and the Doctrinal Train Wreck in Boomer v. Atlantic Cement)".Journal of Tort Law.4(3): 1.doi:10.1515/1932-9148.1123.S2CID155015267.SSRN2040896.
  18. ^Pedro, Portia (1 June 2018)."Stays".California Law Review.106(3): 869.
  19. ^Press Release, U.S. Dep't of Justice, Statement of the Department of Justice Antitrust Division on Its Decision to Close Its Investigation of Samsung's Use of Its Standards-Essential Patents (7 Feb. 2014) [hereinafter DOJ Closes Its Samsung Investigation], available athttp:// justice.gov/atr/public/press_releases/2014/303547.pdf;Decision and Order § IV.D, Robert Bosch GmbH, No. C-4377 (F.T.C. 23 Apr. 2013).Archived2014-04-07 at theWayback Machine
  20. ^J. Gregory Sidak,Injunctive Relief and the FRAND Commitment in the United Statesat 16,forthcoming in1 Cambridge Handbook of Technical Standardization Law: Antitrust and Patents (Jorge L. Contreras ed., Cambridge Univ. Press 2017),https:// criterioneconomics /injunctive-relief-and-the-frand-commitment-in-the-united-states.html.
  21. ^Joseph Farrell, John Hayes, Carl Shapiro & Theresa Sullivan, Standard Setting, Patents, and Hold-Up, 74 ANTITRUST L.J. 603 (2007); Jorge L. Contreras, Fi xing FRAND: A Pseudo-Pool Approach to Standards-Based Patent Licensing, 79 ANTITRUST L.J. 47 (2013).
  22. ^J. Gregory Sidak,The Meaning of FRAND, Part II: Injunctions,11 J. COMP L. & ECON 201 (2015),https:// criterioneconomics /meaning-of-frand-injunctions-for-standard-essential-patents.html.
  23. ^England and Wales Court of Appeal (Civil Division),Willis Ltd & Anor v Jardine Lloyd Thompson Group Plc & Ors,2015, EWCA Civ 450 (22 April 2015)
  24. ^Press Gazette,14 October 2009,MPs slam 'super injunction' which gagged GuardianArchived16 June 2011 at theWayback Machine
  25. ^Robinson, James (13 October 2009)."How super-injunctions are used to gag investigative reporting".The Guardian.London.
  26. ^"House of Commons Hansard Debates for 17 Mar 2011".Parliament of the United Kingdom. 17 March 2011.
  27. ^"Trafigura drops bid to gagGuardianover MP's question",The Guardian,13 October 2009.
  28. ^Leigh, David (29 March 2011)."Superinjunction scores legal first for nameless financier in libel action".The Guardian.London.Retrieved3 April2011.
  29. ^Greenslade, Roy (20 April 2011)."Law is badly in need of reform as celebrities hide secrets".Evening Standard.London. Archived fromthe originalon 24 April 2011.Retrieved30 April2011.
  30. ^Swinford, Steven (21 March 2011)."'Hyper-injunction' stops you talking to MP ".The Daily Telegraph.London.Archivedfrom the original on 12 January 2022.
  31. ^Tim Dowling (21 March 2011)."Got secrets you want to keep? Get a hyper-injunction".The Guardian.London.
  32. ^"Number crunching".Private Eye.1288.Pressdram Ltd: 5. 2011.
  33. ^"Media concession made in injunction report".BBC News.20 May 2011.Retrieved20 May2011.
  34. ^"A Philosophical Conundrum".Private Eye.1393.Pressdram Ltd: 9. 2015.
  35. ^ab"EUR-Lex - 52017DC0708 - EN - EUR-Lex".eur-lex.europa.eu.Retrieved12 May2021.
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