preliminary injunction

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A preliminary injunction is an interlocutory order issued by a judge early in a lawsuit to stop the defendant from continuing their allegedly harmful actions, or commanding them to act in a certain manner to preserve the status quo before the final judgment

An injunction is an equitable remedy or a declaratory judgment (when the harm done cannot be remedied by awarding monetary compensation). The failure to adhere to the order issued in the injunction could end in the violator’s liability for contempt of court.

The three types of injunctions are permanent injunctions, temporary restraining orders, and preliminary injunctions. The party seeking a preliminary injunction must adequately show that there would be irreparable harm to the seeking party without the preliminary injunction. The preliminary injunction could be granted both during and after the trial. However, the preliminary injunction must be issued after a hearing, and the granting of preliminary injunctions depends on the judge’s discretion. The judge evaluates the degree of the potentially irreparable harm (e.g., the harm to business reputation, physical harm to a party, the violation of a constitutional right, etc.), the likelihood of the winning of each party, and the public and private interests that are at stake as the result of the granting of the injunction (e.g., prohibiting free speech is a violation of the public interest that the courts should consider). See Winter v. Natural Resources Defense Council, Inc, 555 U.S. 7 (2008).

The dissenting party could appeal the judge’s awarding or non-awarding of the preliminary injunction. The courts also pay close attention to issues of fairness and good faith when deciding on a preliminary injunction. If the extent of irreparable harm outweighs significantly more than the party being compelled to refrain from a certain action, then the judge will grant the preliminary injunction. Courts generally do not consider the defendant’s refraining from performing an illegal activity as harm done to the defendant. The likelihood of success based on merits for the plaintiff is the most decisive factor in the balancing test. Also, note that the burden of proof for the issuance of a preliminary injunction is substantially greater than that required of a motion for summary judgment.

If the party moving for the preliminary injunction wants to appeal the judge’s denial of the preliminary injunction, then they will make an interlocutory appeal (since the judge’s denial is a form of an interlocutory order). If the judge grants the preliminary injunction, the defendant will receive notice and the opportunity to be heard before issuing the preliminary injunction. The preliminary injunction could be modified or lifted after the issuance if the circumstances substantially change after the issuance.

The Federal Rule of Civil Procedure Rule 65 governs the preliminary injunction procedures for federal cases. However, Rule 65 does not describe the standard for granting injunctions; and courts have developed judicial standards as a result. Therefore, the standards and balancing test vary from jurisdiction to jurisdiction, and the rules vary from state to state.

For more on preliminary injunctions, see this University of Florida Law Review article, this Virginia Law Review article, and this Houston Law Review article. 

See also: Memorandum of the United States in Support of Motion for Preliminary Injunction: U.S. v. Microsoft Corporation, How to File a Preliminary Injunction

[Last updated in January of 2024 by the Wex Definitions Team]