Emergency Business Litigation: Temporary Restraining Orders

Businesses from time to time experience legal emergencies that require quick and decisive legal action. Such circumstances call for emergency business litigation. A temporary restraining order (often referred to as a “TRO”) is just one of several emergency business litigation tools available to litigants facing imminent and irreparable harm to their businesses. A temporary restraining order is typically the first step in seeking emergency legal relief and is often followed by other forms of emergency litigation.

Illinois courts describe a TRO as an equitable remedy that is issued in extraordinary circumstances when necessary to prevent irreparable harm until the court has an opportunity to rule on a motion for preliminary injunction after an evidentiary hearing. A TRO requires a party to maintain a certain status quo or to stop certain actions until the court has an opportunity to hear further evidence and argument from the parties.

There are two types of TROs in Illinois: TROs without notice (ex parte) and TROs with notice. TROs without notice are disfavored. Courts will only grant ex parte TROs under extraordinary circumstances establishing that the irreparable harm complained of would occur during the time it would take to provide the defendant notice. A TRO requires initiating a formal lawsuit by filing a complaint followed by a motion for a TRO requesting a court to order a party to do or cease from doing something specific. A TRO order lasts only a short amount of time, typically under two weeks and under Illinois law no more than 10 days except in certain circumstances, and is generally followed closely by a preliminary injunction hearing.

Illinois courts will only grant a TRO to prevent imminent, irreparable harm to the party seeking the TRO. TROs are often sought in a number of business settings, including employment settings. Common instances where seeking a TRO is appropriate include to enforce restrictive covenants such as non-compete, non-disclosure, and non-solicitation agreements. TROs are also sought when a minority shareholder is being frozen out by a controlling shareholder or where business partners or members of a limited liability company have a dispute that threatens the ability of the business to continue as a going concern. Businesses with trade secrets or other heavily protected intellectual property may file for a TRO to prevent distribution or misuse of that proprietary information.

The first step in obtaining a TRO is filing a lawsuit. A plaintiff seeking a TRO must typically file a motion or petition in addition to a verified complaint setting forth the necessary facts and elements establishing entitlement to a TRO. To be entitled to a TRO in Illinois, a plaintiff must have: (1) a clearly ascertained right in need of protection, (2) irreparable injury in the absence of an injunction, (3) no adequate remedy at law, and (4) a likelihood of success on the merits of the case. Courts consider the imminent threat of irreparable injury to be the most important factor when deciding whether to grant or deny a TRO. A hearing on a motion for a TRO is a summary proceeding. The court will not decide controverted facts or the merits in the context of a motion for a TRO. Procedures for obtaining a TRO can be found in Section 11-101 of the Illinois Code of Civil Procedure, 735 ILCS 11-01, and FRCP 65.

The emergency business litigation attorneys at Lubin Austermuehle have over three decades of experience defending and prosecuting TRO motions and other emergency litigation claims in the federal and state courts in Illinois in a wide variety of business dispute lawsuits. We are knowledgeable regarding the complexities of emergency litigation and are calm and collected in emergency situations. We are committed to fighting for our clients' rights to emergency business relief. We have successfully defended and prosecuted scores of TROs and preliminary injunctions and then won on appeal in the expedited appeals that often follow injunction decisions. Conveniently located in Chicago and Elmhurst, Illinois, we have successfully litigated business separation, accounting and breach of fiduciary duty cases for clients all over the Chicago area. To schedule a consultation with one of our skilled attorneys, you can contact us online or give us a call at 630-333-0333.