Preliminary Injunction Irreparable Harm Analysis

Hampton IP can help you assess the likelihood of irreparable harm to a moving party if a preliminary injunction is not granted. Additionally, our economic damage experts help triers of fact compare and contrast balance of hardship among litigants by looking at potential lost sales, lost market share, the amount invested, potential employment disruptions, and other economic harm to the parties.

What Is Preliminary Injunction?

A preliminary injunction (or a temporary restraining order) against a party acts to preserve the status quo to prevent immediate irreparable harm to the moving party before a decision on the merits of the cases. The court can require the moved upon party to either do something or to refrain from doing something until a final decision is made.

Courts have the power to issue injunctions prior to the final judgment in an action. Case law currently instructs courts to consider the following when weighing a preliminary injunction:

1. Whether the movant has at least a reasonable likelihood of success on the merits;
2. Whether the movant will suffer irreparable harm if the injunction does not issue;
3. Whether the balance of hardships created by the injunction favors the plaintiff; and
4. Whether granting the injunction would disserve the public interest.

Irreparable Harm

Irreparable harm is damage to the moving party that cannot be compensated with a monetary damage award post-trial. Irreparable harm is dependent on the facts of each case and may turn on (1) the level of competition between the parties, and (2) the perceived difficulty in quantifying monetary losses after the trial is completed.

Balance of Hardships

Balance of hardships considers the harm that may occur to the moving party if the injunction is denied in contrast to hardship to the moved-upon party if the court grants an injunction.