The Virginia Business Litigation Blog
Filing a lawsuit against another company or individual in Virginia is not always about money. Sometimes, it is necessary to get a court order compelling the defendant to take some desired action (like perform a contractual obligation to purchase real estate) or restraining the defendant from acting in a manner that would harm your business (like sharing trade secrets with a competitor). The injunction remedy does not award money damages to the injured party, but protects property and other rights from irreparable injury by prohibiting or commanding acts that would (or are likely to) result in such injuries.
When time is of the essence, Virginia courts will allow a plaintiff to move for a temporary, preliminary injunction to restrain or compel the conduct at issue at the outset of a case, pending further investigation and trial. The purpose of a preliminary injunction is to preserve the relative positions of the parties (i.e., the “status quo”) either while the suit is pending or for some shorter period of time determined by the court. In certain emergency situations, it may be possible to obtain an injunction at a hearing of which the defendant is not notified. This is sometimes necessary when there is a legitimate fear that the defendant would take the feared action (or inaction) upon learning of the lawsuit or motion.
An injunction is considered an “extraordinary” remedy and is generally more difficult to obtain than an award of money damages. Of the different types of injunctions available, the form that compels another party to perform an act (as opposed to merely preserving the status quo and prohibiting certain actions) is considered the most extraordinary and is the most difficult to obtain in court.
Whether you are in United States District Court (i.e., “federal court”) or Virginia Circuit Court (i.e., “state court”), the requirements for obtaining injunctive relief are generally the same. The touchstone for obtaining an injunction, a form of equitable relief, is the existence of an imminent threat of “irreparable harm,” that is, harm that is of such a nature that it cannot adequately be compensated with money damages.
To obtain a preliminary injunction, it will also be necessary to convince the court that the “balance of hardships” should be decided in your favor. This generally means a showing that the irreparable harm to be suffered by the plaintiff if an injunction is not granted outweighs the harm that the defendant would suffer if the injunction is granted. Courts generally examine the following factors when balancing the hardships: (i) the likelihood of irreparable harm to the plaintiff if the preliminary injunction is not granted; (ii) the likelihood of harm to the defendant if the preliminary injunction is granted; (iii) the likelihood that the plaintiff will succeed on the merits when the case goes to trial; and (iv) whether the public interest would be served by granting the preliminary injunction.
Regardless of whether you succeed in obtaining a preliminary injunction on an expedited basis, you can ask for a permanent injunction at trial. Permanent injunctions are available on the same proof required to obtain preliminary injunctions, but the test is applied more strictly due to the permanency of the remedy and the fact that usually more evidence is available.
In some cases, your job is made easier by the Virginia Code. When a specific statute provides for the availability of injunctive relief, the standards are relaxed significantly. Most importantly, a showing of irreparable harm is unnecessary when such a statute applies.
An injunction can be a powerful remedy, but difficult to secure in court. Businesses would be well advised to include clauses in their contracts containing express agreements to allow future breaches or threatened breaches to be enjoined by injunctive relief.