TROs & notice

1. TROs & notice • Because of the emergent nature of TROs, NOTICE is often the biggest issue. • Federal and State rules clearly contemplate Ps will give notice but also contemplate that there may be times when notice is not possible. • When will P’s ever dispense with notice of a TRO hearing? • An injunction is only binding on someone if they have notice that it exists (that’s another requirement of notice) – you have to be able to find D after the hearing. This means P’s can usually find D to give them notice of the hearing so that they can defend themselves too. • When, if ever, will P’s be unable to find D before the hearing but be able to serve D after the hearing w/ the injunction?

2. How much notice is required for a TRO? • With preliminary injunctions: • Notice cannot be dispensed with – see FRCP & MRCP rules. • All preliminary injunction hearings are typically dealt with as written motions on at least 10-14 days notice. These time lengths are generally governed by local rules. • What type of notice is typically required of TRO requests – assuming P is not trying to dispense with notice altogether? • Under FRCP? • Can P wait until the last minute to give notice even if P knows where D is? In what circumstances is delayed notice okay? • How does MO law deal with the length of notice issue?

3. How long can TRO’s last? • When TRO’s issue w/out notice, they are generally limited in duration by rule: • FRCP 65(b)(2) – expires 14 days after entry if the court has not set an earlier expiration date • Court can extend the order for a “like period” if other party consents or there is “good cause” • Raises interesting question – what is the duration TROs issued with notice? • Federal rules don’t speak to this issue.

4. Sampson v. Murray • Facts • P moved for TRO restraining her employer from dismissing her pending pursuit of administrative appeal; DCT granted TRO • DCT continued TRO indefinitely until D produced P’s supervisor as a witness in person • On appeal, SCT characterized the TRO as a preliminary injunction rather than a TRO • Why would SCT treat an injunction that everyone thought of as a TRO as a preliminary injunction? • What problems arise from treating the TRO as a preliminary injunction?

5. More re TROS of Unlimited Duration w/ Notice • Sampson – treats TRO w/ notice of unlimited duration as preliminary injunction, which allows D’s appeal of the injunction • Compare Granny Goose (p. 465 n.2) – SCT found unlimited TRO w/ notice was a TRO that expired per time limits in the rule. Ds were not in contempt for ignoring TRO after those time limits. • Which approach is federal court more likely to use re characterizing TROs? • Courts tend to follow Sampson’s approach (especially when the hearing is more formal – i.e., longer hearing w/ D’s participation, more formal notice & evidence) but if hearing was very informal and court was unclear about extending TRO, they may use Granny Goose • Both approaches are designed to give courts tools to maneuver out of an injunction that is potentially of unlimited length and unappealable

6. Practical tips re unlimited TROs under FRCP: • If a federal court issues a TRO of unlimited duration without notice to the defendant • It will either expire by the terms of the order • Or it will expire under the time limits written into the rule • If a federal court issues a TRO of unlimited duration with notice to the defendant, the litigants should seek clarification: • D should move the court to modify or dissolve it. • If the court refuses to modify or dissolve the order, D may be able to appeal that ruling. • After the time limits in the rules have run, D can violate the order (Granny Goose) or try to appeal it as a prelim. injunction (Sampson) • Note Missouri’s approach avoids these problems: TRO’s with OR w/out notice are limited in duration by rule. • MRCP 92.02(a)(5) & 92.02(b)(4)

7. eBay, Inc. - The new “traditional” test for permanent injunctions & its relationship to preliminary relief • Facts: Mercexchange alleged patent infringement re business method patent against eBay and won. District court refused to issue permanent injunction but Court of Appeals said injunction was warranted because of the “general rule that courts will issue permanent injunctions against patent infringement except in exceptional circumstances.” • SCT reversed CTA and announced that to qualify for a permanent injunction, based on “well-established principles,”P must demonstrate: • P has suffered irreparable injury • P’s remedies at law are inadequate (including damages) • Considering balance of hardships between P and D, an equitable remedy is warranted • Public interest is not disserved by the permanent injunction • This looks a lot like the test for preliminary relief (although prong 1 is different – no likelihood of success on the merits inquiry)

8. Potential problems with the eBay approach & permanent injunctions • Factors 1&2 are the same thing – aren’t they? • Does court mean to require that P show “past harm” with prong 1? • Factor 3 has always been a DEFENSE to permanent injunctions – now SCT acts as if P has to prove balance favors P • Plus “balancing the equities” (aka undue burden on D) has traditionally meant many different things given the way culpability factors in to the court’s decision – courts used judgment here • Courts have always considered factor 4 (public interest) as it was relevant but it was never P’s burden to show this factor favored P • Lower federal courts have begun using the eBay approach in various types of cases (not just patent cases). • Implications – fewer presumptions of irreparable harm as courts used to use (e.g., from damage to land) – P’s more likely to have to show ACTUAL harm as with preliminary injunctions • State courts still take traditional approach like Whitlock v. Hilander