Emergency Commercial Litigation: Temporary Restraining Orders

Business owners know that legal emergencies require decisive legal action. In such circumstances, a business may require injunctive action now before a resolution of the entire case on the merits. There are two types of injunctive relief that a business may seek prior to resolution of the controversy on its merits: temporary restraining orders (often referred to as a “TRO”) and preliminary injunctions. A TRO is an emergency remedy issued in exceptional circumstances to maintain the status quo for a limited period of time. The key defining characteristic of a TRO is that it is provisional in nature and does not decide the merits of the dispute. Due to their limits, TROs are typically followed by other forms of emergency litigation, such as a preliminary injunction.

Understanding What a Temporary Restraining Order is

Under Illinois law, a TRO is an equitable remedy that requires a party to do something or refrain from doing something until such time as the court can hear and review further argument and evidence from the parties. The requirements for TROs in Illinois state courts are found in Section 5/11-101 of Article XI of the Illinois Code of Civil Procedure (commonly known as The Injunction Act), 735 ILCS 5/11-101. The requirements for TROs in federal courts are found in Federal Rule of Civil Procedure 65. Illinois law provides that a TRO may last only 10 days, except in certain circumstances.

Illinois law recognizes two different types of TROs: TROs with and without notice (the latter being referred to by courts as ex parte TROs). Ex parte TROs are disfavored and may be granted only in extremely limited circumstances where the party seeking the TRO can demonstrate that it would suffer irreparable harm in the time it would take to provide notice to the defendant. A business seeking a TRO must meet a high burden of demonstrating, through well-pled facts, its entitlement to the relief sought. Because TROs only last for a very short time, the court, upon entry of a TRO, typically sets a date for an evidentiary hearing on a motion for preliminary injunction.

Understanding When a Temporary Restraining Order is Appropriate

Illinois courts will only grant a TRO if there is a threat that the party seeking its entry will suffer imminent, irreparable harm. TROs may only provide injunctive relief, meaning a TRO cannot be used to obtain money damages. Emergency motions for entry of a TRO are sought in a number of business settings, most often in employment and intellectual property disputes. For instance, seeking a TRO may be appropriate to require former employees to comply with the requirements of their non-compete, non-disclosure, or non-solicitation agreements.

Our emergency commercial litigation attorneys frequently seek TROs on behalf of minority shareholders who are being frozen out or squeezed out of their companies by a controlling shareholder or business partners or members of a limited liability company who are facing a stalemate due to a dispute that threatens the ongoing viability of the business.

What Must be Proven to Obtain a Temporary Restraining Order?

The first step in obtaining a TRO is to file a lawsuit. A plaintiff seeking a TRO must either set forth the facts explaining why a TRO is necessary in a verified complaint or file a motion or petition supported by the necessary affidavits attesting to the facts that would justify entry of a TRO. As the court in Houseknecht v. Zagel explained, parties seeking entry of a TRO must establish: (1) the existence of a clearly ascertained right in need of protection, (2) an imminent risk of irreparable injury in the absence of injunctive relief, (3) an inadequate remedy at law, and (4) a likelihood of success on the merits of the dispute. Of these factors, the most important is the imminent threat of irreparable injury. A hearing on a motion for a TRO is a summary proceeding.

With offices in Chicago and Elmhurst, The temporary restraining order attorneys of Lubin Austermuehle represent clients in the greater Chicago area, DuPage County, elsewhere in Illinois, and in Indiana and Wisconsin. We have more than three decades of experience defending and prosecuting TRO motions and other emergency commercial litigation claims in the federal and state courts in Illinois in a wide variety of business dispute lawsuits. Contact us at 630-333-0333, or online to schedule a consultation with one of our knowledgeable business litigation attorneys.

Client Reviews
"I was referred to Peter Lubin from someone in the car business to handle a law suit. From the moment I made the appointment Peter and his staff were outstanding. This wasn't an easy case, most lawyers had turned me down. However, Peter took the time to meet with me and review everything. He took on the case, and constantly communicated with me about updates and case information. We beat this non-compete agreement case in record time. I would use him again and recommend him to my closest family and friends. 5 stars is not enough to thank him for his service." Sebastian R.
"I worked on two occasions with Peter Lubin and his staff. They took their time with me and discussed each and every item in detail. The group makes you feel like you are part of the family and not just another hourly charge. I recommend Peter to anyone who asks me for a referral. If you are looking for a top notch attorney at a reasonable rate, look no further than Lubin Austermuehle." Kurt A.
"Excellent law firm. My case was a complicated arbitration dispute from another state. Was handled with utmost professionalism and decency. Mr. Peter Lubin was able to successfully resolve the case on my behalf and got me a very favorable settlement. Would recommend to anyone looking for a serious law firm. Great staff and great lawyers!" Albey L.
"I have known Peter Lubin for over 30 years. He has represented me on occasion with sound legal advice. He is a shrewd and tough negotiator leading to positive outcomes and averting prolonged legal hassles in court. He comes from a family with a legal pedigree and deep roots in Chicago's top legal community. You want him on your case. You need him on your opponents case. He won't stop fighting until he wins." Christopher G.
"Peter and his team helped us with an auto fraud case. They communicated well (timely and very responsive), investigated deeply, and negotiated a very good settlement. We were able to resolve our significant issue without a large burden and in a manner that allowed for us to come out ahead. I'd recommend Peter and his team strongly!" R.J. Callahan
"Peter was really nice and helpful when I came to him with an initial question about a non-compete. Would definitely reach out again, recommended to everyone." Johannes B.