Welcome to the Bar Exam Toolbox podcast. Today we are talking about injunctive relief, as part of our "Listen and Learn" series. Your Bar Exam Toolbox hosts are Alison Monahan and Lee Burgess, that's me. We're here to demystify the bar exam experience, so you can study effectively, stay sane, and hopefully pass a move on with your life. We're the co-creators of the Law School Toolbox, the Bar Exam Toolbox, and the career-related website CareerDicta.
Alison also runs The Girl's Guide to Law School. If you enjoy the show, please leave a review on your favorite listening app, and check out our sister podcast, the Law School Toolbox podcast. If you have any questions, don't hesitate to reach out to us. You can reach us via the contact form on BarExamToolbox.com, and we'd love to hear from you. And with that, let's get started. Welcome back to our "Listen and Learn series"!
You may recall that there are two categories of remedies - equitable remedies and remedies at law. Today we are going to be talking about injunctive relief, which is an example of the former. As a reminder, equitable damages are an extraordinary form of relief that can only be granted where monetary damages would be wholly inadequate to repair the plaintiff's injury. Essentially, you're looking for situations where money just isn't going to be enough.
Think, "Money can't buy happiness", except in this case, it's money won't make the plaintiff whole. FRCP 65 sets the rules for injunctions, which may only be granted in a limited number of circumstances. There are three types of injunctions that we're going to talk about today - temporary restraining orders, preliminary injunctions, and permanent injunctions. All three types of injunctions can be either mandatory or prohibitory, depending on the conduct at issue in the case.
Mandatory injunctions require that a party, typically the defendant, perform a specific act. In contrast, a prohibitory injunction would prohibit the defendant from engaging in that specified act. Okay, let's get started. Our first major topic today is temporary restraining orders, or TROs. A TRO is basically a stop-gap measure. Its job is to preserve the status quo until the court is able to hold a hearing on a preliminary injunction.
Since a TRO is just keeping the parties in a temporary holding pattern, it can only remain in effect for a limited period of time. This period cannot exceed 14 days, unless the moving party can establish good cause for it to remain in effect for a longer duration. To obtain a TRO, a party must establish that they will suffer immediate irreparable harm unless the order is issued.
Notice to the opposing party is generally required; however, a court may grant a TRO ex parte if the moving party shows that they meet the irreparable harm standard, and their attorney certifies in writing any efforts made to give notice and the reasons why notice wouldn't be required. Because TROs are temporary measures, they are generally not immediately appealable. While the opposing party is unable to appeal, they may move to dissolve or modify the order if it was granted without notice.
So, how are we feeling so far? Injunctions can feel very abstract at first, so let's look at an example together to get a better sense of how these concepts play out in the real world. This hypothetical is pulled from Question 2 on the July 2019 California bar exam: "Clear City is home to 50 churches, one of which burned down earlier this year. Fire investigators suspected that the cause was a burning candle.
Clear City has enacted an ordinance that prohibits burning candles in any church and authorizes the fire marshal to close down any church in which candle burning occurs. The mayor told the press that Clear City would vigorously enforce the ordinance and that the fire marshal would randomly visit churches during Sunday services to close down violators. The fire marshal visited six churches last Sunday, but did not visit the Clear City Spiritual Church, SC.
Two of the six churches visited were burning candles, but were only issued warnings, not shut down. Immediately after visiting the last of the six churches, the fire marshal publicly announced that it was likely no further warnings would be issued to churches caught violating the ordinance. The fire marshal also announced that due to a lack of personnel, these random visits would not resume for at least eight weeks.
The members of SC burn candles during Sunday services to signify spiritual light in the world. The day after the fire marshal's announcement, SC gave notice to Clear City's attorney that it would immediately sue Clear City and federal court seeking a temporary restraining order to enjoin Clear City from enforcing the ordinance until a preliminary injunction hearing can be held. What's the likelihood of SC's success?" So, what do we think?
Well, let's start with what SC needs to establish to be granted a TRO. They have to show that they will suffer an imminent and irreparable harm from the Clear City ordinance if the TRO is not issued. So, is SC's harm imminent or irreparable? Likely not. SC certainly has a case that their harm would be irreparable. They are one of the churches that burn candles as part of their Sunday services, and the consequence of continuing to do so is severe.
The fire marshal has the authority to shut the church down if they are found to be in violation. They aren't just going to be fined, and the fire marshal said he was no longer going to issue any warnings. That's a pretty irreparable harm. However, it is unlikely that SC's harm would be considered imminent, warranting a TRO. The fire marshal announced publicly that there would be no more random inspections of churches for eight weeks, because they do not have the personnel.
That's a total of 56 days, while the TRO would only be in effect for a maximum of 14 days. As such, there is likely no pressing need requiring a TRO to be granted in order to prevent SC from being shut down before a preliminary injunction hearing can be held. Hopefully this hypo helped lend some context to TROs. We're going to revisit this example shortly to see how the scenario plays out when we apply it to the preliminary injunction standard. Do you think we'll reach the same conclusion?
Well, let's talk about preliminary injunctions to find out. A preliminary injunction is similar to a TRO, in that it is also meant to maintain the status quo of the parties. A preliminary injunction, however, is going to keep the parties in that holding pattern for the duration of the trial, not just for 14 days. Because this order will remain in effect until a final judgment is entered, the moving party must meet a much higher standard for the injunction to be issued.
A preliminary injunction may also only be granted after notice is given to the opposing party and a full hearing is conducted on whether the order should be issued. A party seeking a preliminary injunction must establish four elements under Rule 65. To provide some context, we're going to consider a short example to help us as we walk through each of these elements: "Anna and Ben are neighbors, each owning adjoining parcels of land. Ben has a pond on his property.
Every spring, it plays host to a variety of ducks and other waterfowl while they have their offspring. Anna's deck overlooks Ben's pond, and she derives a lot of enjoyment from watching the wildlife that comes to visit each spring. While Ben likes his pond, he wants to fill it in, so that he will have enough space in his yard to construct a swing set for his children. He obtains all the required approvals from Town.
Anna files a complaint and a motion for a preliminary injunction to stop Ben from destroying the pond." Okay, with those facts in mind, let's talk about each of the elements a plaintiff must establish to be granted a preliminary injunction. First, the plaintiff must show that they are likely to succeed on the merits. This means that they must show that they have a reasonable probability of succeeding at trial. A likelihood of success is sufficient. Actual proof is left for the trial itself.
So let's look at our feuding neighbors, Anna and Ben. Can Anna show that she has a likelihood of success on the merits? Hm, not likely, right? Ben owns the property at issue, and Town approved his proposal to fill in the pond. So there doesn't appear to be any zoning or building regulation that would prohibit Ben from proceeding with his plan. Without any sort of property right, like an easement, Anna isn't likely to win at trial.
Even though Anna failed our first element, we still need to learn the other three, so let's keep going. A party requesting a preliminary injunction must also show that they are likely to suffer irreparable harm if the order is not granted. The harm must be actual and imminent, not remote or speculative. The plaintiff's injury is one for which the eventual chance of monetary damages alone will not be adequate compensation. Anna likely has a strong argument here.
Her harm isn't one that can really be compensated by money. She would be losing her enjoyment of the pond and the wildlife. This is a classic case of irreparable harm. Once the pond is filled in, it's gone. If Anna wins at trial, Ben can't easily undo his actions and convert his land back into a pond. That's pretty irreparable and it might warrant needing to keep the status quo of the pond until we have a trial.
Our third element is that the balance of equities must tip in the moving party's favor. Anna has a good argument here too. As we just discussed, she would suffer an irreparable injury for which money isn't going to be an adequate remedy. In contrast, if the court enjoins Ben from filling in his pond until a decision is made on the merits at trial, Ben will only be harmed by a delay. If he wins at trial, he can still convert his pond. There's no indication the pond is harming him or his property.
His delay in constructing a swing set for his children is unlikely to outweigh the potential harm to Anna. Lastly, the moving party must show the injunction is in the best interest of the public. This is likely to be a fairly neutral factor in a situation like Anna and Ben's, where we have a dispute between two private parties over private land. There are no major ramifications for non-parties either way.
There may be some community environmental benefit in maintaining the pond for wildlife, weighing in Anna's favor, but there is also a benefit in maintaining the right of property owners to manage their land without interference, weighing in Ben's favor. All four elements must be established for a court to grant a preliminary injunction.
So, even though Anna has a strong argument for two, and a third likely doesn't weigh in either one of their favors, she still cannot prove a likelihood of success on the merits at trial. A court, therefore, is not going to grant her a preliminary injunction. Still with me? Great. Remember our earlier hypo with Clear City's ordinance prohibiting burning candles in a church? As promised, it's time to revisit that and examine it through the preliminary injunction lens.
As a quick reminder on our facts, Clear City has enacted an ordinance prohibiting burning candles in a church, and the fire marshal has the authority to close down any church in violation. He's conducting random church visits during Sunday services to close down violators, and a church called SC is looking to obtain a preliminary injunction to enjoin enforcement until the pendency of their lawsuit.
Earlier, we determined that SC was unlikely to be successful in obtaining a TRO, but we want to know if they will succeed in obtaining a preliminary injunction. To make this determination, we need to know if SC can establish all four of the preliminary injunction elements, so let's walk through each of them together. First, SC needs to show that they will have a likelihood of success on the merits of their lawsuit.
SC is a church, and Clear City's ordinance is going to inhibit their ability to practice their religion, because their church burns candles as part of their service to signify spiritual light. So SC is likely pursuing a First Amendment freedom of religion claim and the ordinance is unconstitutional. Clear City is a state actor and therefore subject to the First Amendment. The law discriminates against religion on its face, because it specifically prohibits burning candles only in churches.
It does not address candle burning in any other buildings in the city. SC also has a good argument that the Clear City ordinance will not hold up under strict scrutiny. Clear City does have a compelling interest in protecting the safety of its citizens from fires; however, the ordinance is not narrowly tailored to achieve that interest. Clear City completely prohibits the use of candles in churches, so it is a blanket prohibition.
There are likely less restrictive ways Clear City could have regulated candle burning, such as limiting where candles can be placed in churches, restricting the type of candles that can be used, or a number of other possible safety measures. So, we have established that SC satisfies the first element of likelihood of success on the merits. Now let's revisit the second element of irreparable harm that we discussed earlier when we talked about TROs.
When we considered SC's motion for a TRO, we determined that their harm was not imminent, because the fire marshal was not going to resume inspections for eight weeks. Does our opinion change now that SC is requesting a preliminary injunction? It likely does, right? With inspections eight weeks away, the threat to SC wasn't imminent enough for a TRO. But litigation is a lengthy process. There is a strong likelihood that preparation for and the actual trial will exceed that eight-week timeframe.
If the fire marshal resumes random inspections at the end of the eight weeks, then the likelihood of SC suffering the irreparable injury of being shut down from enforcement of the ordinance is significant. So far SC has a pretty good case. So let's consider the third element. Does the balance of equities weigh in SC's favor? SC is at risk of potentially being shut down as a result of burning candles during their services. As we talked about, this is potentially an irreparable injury.
They will be shut down and could lose congregation members to other churches during that time. Even if SC ultimately wins at trial and reopens, there's no guarantee those members would return. In contrast, Clear City would be temporarily prohibited from enforcing an ordinance. The ordinance it is trying to enforce may be unconstitutional, and even if it is not, the harm to the city is likely small.
The fire marshal has explained that they're already having enforcement difficulties due to a lack of personnel. Being delayed in enforcement of the ordinance does raise the potential of the city having to respond to a fire in a church.
However, only one church out of the 50 has ever burned down in Clear City from burning candles, and the city has not shown that responding to a church fire raises greater dangers than any of the other fires that the city will respond to that fall outside the reach of the ordinance. As such, the balance of equities likely falls in favor of SC. Okay, last element: Is the injunction in the best interest of the public?
This likely weighs in SC's favor too, as there is a public interest in preserving the right to practice one's religion without government interference under the First Amendment. In contrast, there is not a strong public interest in allowing the city to enforce a potentially unconstitutional ordinance. So, what's our final verdict? With strong arguments for all four elements, it is likely that SC will be successful with their request for a preliminary injunction.
There is a strong risk of harm to SC that warrants an injunction to preserve the status quo for the duration of the lawsuit. So, how do we feel about that hypo? This is certainly complicated. Let's look at another hypothetical together to see if we can really nail down these topics.
This hypothetical is pulled from Question 4 on the July 2008 California bar exam, but we've edited it a bit to focus on only the issue of preliminary injunctions: "Barry is a publisher of Auto Designer's Digest, a magazine that appeals to classic car enthusiasts. For years, Barry has been trying to win a first place award in an annual Columbia Concours d'Elegance - the Concours - one of the most prestigious auto shows in the country.
He was sure that winning such an award would vastly increase the circulation of his magazine and attract lucrative advertising revenues. This year, Concours was scheduled to begin on June 1st, with applications for its entry to be submitted by May 1st. Sally owned a 1932 Phaeton, one of the only two surviving cars of that make and model. The car was in such pristine condition that it stood a very good chance of winning the first place prize.
On April 1st, Barry and Sally entered into a valid written contract by which Barry agreed to buy, and Sally agreed to sell, the Phaeton for $200,000 for delivery on May 25th. In anticipation of acquiring the Phaeton, Barry completed the application and paid the non-refundable $5,000 entry fee for the Concours.
On May 10th, Sally told Barry that she had just accepted $300,000 in cash for the Phaeton from a wealthy Italian car collector, stating, 'That's what it's really worth', and added that she would deliver the car to a shipping company for transport to Italy within the next few weeks. Barry has filed for a preliminary injunction to enjoin Sally from delivering the Phaeton to the shipping company pending the resolution of their dispute.
Will he be successful?" So, do we think Barry will be successful at stopping Sally from delivering the car to the shipping company? Let's run through our preliminary injunction elements. Is Barry likely to succeed on the merits of the lawsuit? Well, Sally willfully breached her contract with Barry, which the fact pattern tells us was a valid contract. Barry, therefore, has a strong likelihood of success on the merits for damages.
He also has a likelihood of success for specific performance, considering the Phaeton is a unique good, with only two cars left in existence. Barry is also likely to suffer irreparable harm if the preliminary injunction is not granted. Sally has already made it clear to him that she's delivering the Phaeton to the shipping company in the next few weeks for delivery to a different buyer. As we mentioned, there are only two cars of this make and model left.
Sally's sale to the Italian collector would therefore deprive Barry of what may be his only opportunity to own a Phaeton. Now, does the balance of equities tip in Barry's favor? As we established, Barry is likely going to suffer an irreparable injury by missing out on potentially his only chance to buy this rare car, which could help his business running a magazine for classic car enthusiasts.
In contrast, Sally would be delayed in selling the vehicle to the Italian collector for $300,000 if the injunction is granted. This may cause her to lose out on the sale, given how long litigation can take. However, if the car's true value is $300,000, then she is likely going to be able to sell it to another purchaser for that amount. Her harms are therefore slight in comparison to Barry's. Lastly, we have to consider the public interest.
This is a private contract between two private parties, so there is minimal impact on the public if the injunction goes into effect. However, there is a public interest in the enforcement of contracts and deterring parties from breaching those contracts, so this factor likely weighs in Barry's favor as well. Since Barry has strong arguments on all four of the preliminary injunction factors, it is likely he will be successful in obtaining an injunction from the court.
Okay, our final topic today is permanent injunctions. A permanent injunction is a determination on the merits, so it is the judgment rendered at the end of trial if the plaintiff is successful. The standard for a permanent injunction is essentially the same as a preliminary injunction, except the plaintiff must now show actual success on the merits. This is because a permanent injunction is a final judgment, and it will remain in effect until it is dissolved by the court.
Any person affected by the injunction, however, has the right to move to modify or dissolve the order. And with that, we are out of time. If you enjoyed this episode of the Bar Exam Toolbox podcast, please take a second to leave a review and rating on your favorite listening app. We'd really appreciate it. And be sure to subscribe so you don't miss anything.
If you have any questions or comments, please don't hesitate to reach out to Lee or Alison at lee@barexamtoolbox.com or alison@barexamtoolbox.com. Or you can always contact us via our website contact form at BarExamToolbox.com. Thanks for listening, and we'll talk soon!