Terminology / Tags

The terms / phrases / tags are intended to provide the reader with a background on issues likely to be addressed in a request for injunctive relief.  To the extent your case does not involve, for example – intellectual property, an understanding of these presumptions may still help the advocate explain his or her case to the judge and / or answer questions from the bench.

adequate legal remedy – Under traditional equitable principles, a party that has an adequate legal remedy, i.e., sufficient money damages remedy, cannot obtain injunctive relief.

antitrust – another type of case where irreparable harm may be presumed.

balance of harms – term used to allow courts to accept, for example, a lesser showing on likelihood of success on the merits if the irreparable harm to the movant absent preliminary relief is perceived to be very real.   See also “serious questions” test discussed below and in Page, Injunctions by Circuit, whereby the 2nd, 7th and 9th Circuits have stated that a showing of a “serious question” as to whether or not the movant will prevail on the merits is enough to obtain injunctive relief if the irreparable harm prong is strongly in favor of the movant.

bond / security – required by FRCP 65(c), and most state civil rules as well.  Generally, trial judge’s discretion will goven the amount of bond to be posted, at least until the preliminary injunction can be appealed.

constitutional rights – another type of case where a presumption of irreparable harm may be presumed.

copyright – Copyright statute may provide for a presumption of irreparable harm.

covenant not to compete – another type of case that may provide for a presumption of irreparable harm.

drastic –  a term used to describe injunctive relief, or when an injunction should issue.

“fair question” – 19th century standard for review of strength of movant’s case under English law to grant a preliminary injunction in chancery / equity, evolved into likelihood of success on the merits under American jurisprudence, then, arguably, devolved back into the “fair question” or “serious question” test as referenced below and discussed in Page, Injunctions by Circuit.  See e.g., William Williamson Kerr & John Melvin Paterson, A Treatise on the Law and Practice of Injunctions 2 (6th ed. 1927) (cited in Bethany M. Bates, Reconciliation After Winter: The Standard for Preliminary Injunctions in Federal Courts, Col. L. Rev. (2011) http://www.columbialawreview.org/assets/pdfs/111/7/Bates.pdf).

four factor test – general means of referring to federal court standard.  See Page, Injunctions by Circuit, for explanation of how Circuits continue to apply different variations of the four factor test.

irreparable harm – movant must show this to prevail in motion for injunction.  Otherwise, money damages would or could suffice and an equitable injunction would not be consistent with case law on this subject.  Many cases hold this is the most important factor to establish to obtain injunctive relief, other courts state that the balancing of the harms / hardships is most important.

likelihood of success on the merits – a stated requirement in the federal court’s four factor test, yet some Circuits may allow a lesser showing.  See “serious questions” below and “balance of harms” above; compare with “fair question” of the existence of an enforceable right.

patent infringement – Patent Act can provide for presumption of irreparable harm for a patent holder.

presumption – in certain types of cases, primarily those involving intellectual property and constitutional rights, the party seeking injunctive relief may be entitled to a presumption of irreparable harm.  Parties may also write into their contracts that certain conduct will constitute irreparable harm for purposes of seeking injunctive relief in court.

public interest – generally the fourth element in any four factor injunction test in federal court, and also required in state courts.

sliding scale – another way of stating that the harms to the parties will be balanced, i.e., by allowing a greater showing of one element to compensate for a lesser showing on another in performing “four factor” test.  Generally, this type of test would allow greater discretion to the hearing court.

“serious questions” test – applied in the 2nd, 7th and 9th Circuits after Winter v. NRDC.  Rejected in 4th Circuit.

sparingly – term used to describe when injunction should issue.

status quo – Although this term does not usually appear in court’s recitation of the “four factors” test, injunctions are always supposed to “preserve the status quo.”  Many courts will require a heightened showing of the four factors if the stauts quo will be altered by the relief requested.

trademark – Lanham Act may provide for presumption of irreparable harm for a trademark holder.

trade secret – State statutes, including those states that have adopted some form of the Uniform Trade Secrets Act (“UTSA”), often provide for a presumption of irreparable harm for alleged trade secret holder.

urgent – another term used to describe when injunction should issue.

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Disclaimer:  This blog does not contain legal advice. This blog is not responsible for the content of external sites or links. 


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