Pretrial procedures - Preliminary injunctions and temporary ...

Learning Outcomes

This article explains pretrial procedures involving urgent equitable relief, including:

• Distinguishing preliminary injunctions from temporary restraining orders (TROs) and recognizing common fact patterns that trigger each remedy on the MBE
• Stating, memorizing, and applying the four elements for a federal preliminary injunction, including how courts weigh likelihood of success and irreparable harm
• Identifying when a TRO may be issued ex parte, the affidavits and certifications required, and the strict limits on duration, extension, and dissolution
• Explaining notice, hearing, bond, consolidation, and specificity rules under Federal Rule of Civil Procedure 65, with emphasis on typical exam traps and procedural errors
• Evaluating whether money damages are an adequate remedy at law and how that determination affects availability of TROs and preliminary injunctions
• Analyzing the appealability of orders granting, denying, or extending injunctive relief, and distinguishing true TROs from de facto preliminary injunctions
• Determining who is bound by an injunctive order, what “actual notice” requires, and when violations properly give rise to civil or criminal contempt
• Applying the doctrinal standards to short MBE-style hypotheticals to decide what relief a court may grant, what procedures it must follow, and what arguments each party should raise

MBE Syllabus

For the MBE, you are required to understand federal pretrial injunctive relief under the Civil Procedure heading, with a focus on the following syllabus points:

• When preliminary injunctions and TROs are available and how they preserve the status quo
• Substantive standards for granting or denying preliminary injunctions and TROs
• Procedural safeguards: notice, hearing, written findings, specificity, bond, and duration limits
• Ex parte TROs: affidavit/verified complaint, efforts to give notice, and certification requirements
• Immediate appealability of orders concerning injunctions and the limited appealability of TROs
• Consequences of violating injunctive orders, including civil and criminal contempt

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT a required element for a preliminary injunction in federal court?
   1. Likelihood of success on the merits
   2. Irreparable harm if relief is denied
   3. The case must involve a federal question
   4. The balance of equities favors the movant
2. A court may issue a temporary restraining order without notice to the adverse party only if:
   1. The movant posts a bond and the adverse party consents
   2. The movant certifies in writing the efforts made to give notice and shows immediate, irreparable harm will result before a hearing
   3. The movant requests it in the complaint
   4. The adverse party is in default
3. What is the maximum duration of a federal TRO issued without notice, unless extended for good cause or consented to by the restrained party?
   1. 7 days
   2. 10 days
   3. 14 days
   4. 28 days

Introduction

In urgent civil disputes, a party may need judicial relief before the case can be fully tried. Money damages awarded at the end of litigation may be too late to prevent serious harm—for example, disclosure of trade secrets, destruction of unique property, or ongoing constitutional violations. Federal Rule of Civil Procedure 65 provides two main interlocutory tools to address this problem: the preliminary injunction and the temporary restraining order (TRO).

Both are forms of equitable relief designed to preserve the status quo until the court can reach a final decision on the merits. Because they are powerful and can significantly restrict a party’s conduct before trial, the rules impose substantive and procedural safeguards that the MBE tests frequently.

Key Term: Interlocutory Injunction
An order issued before final judgment (such as a preliminary injunction or TRO) that directs a party to do or not do something while the case is pending.

Injunctions in the Broader Remedies Framework

It helps to situate preliminary injunctions and TROs within the larger remedies toolbox:

• Legal remedies (primarily money damages) compensate for past harm.
• Equitable remedies (injunctions, specific performance, declaratory relief) are discretionary and aim to prevent or tailor future conduct.

A permanent injunction is issued after a full determination on the merits (for example, after trial or summary judgment). By contrast, TROs and preliminary injunctions are interlocutory—they operate while the case is still being litigated and may be modified or dissolved as circumstances change.

Key Term: Permanent Injunction
A final equitable order, issued after a full adjudication on the merits, that prospectively requires or forbids specified conduct.

Because injunctions are equitable:

• There is no automatic right to injunctive relief.
• The court exercises discretion, guided by structured factors (likelihood of success, irreparable harm, etc.).
• Traditional equitable principles apply (for example, adequacy of legal remedy, balancing of hardships).

On the MBE, when you see a party asking the court to “order” someone to do or stop doing something before trial, you should immediately think about Rule 65 and the rules for TROs and preliminary injunctions.

Types of Pretrial Injunctive Relief

Federal Rule 65 authorizes two principal forms of pretrial injunctive relief:

• Preliminary injunction
  Preserves the status quo after notice and an opportunity to be heard, and remains in effect until final judgment (or further court order).

• Temporary restraining order (TRO)
  Provides short-term emergency relief when immediate action is needed before a preliminary injunction hearing can be held. A TRO may, in narrow circumstances, be issued without prior notice to the adverse party.

Key Term: Preliminary Injunction
A pretrial order issued after notice and a hearing that maintains the status quo by prohibiting or compelling specific acts until the case is resolved or the order is modified.

Key Term: Temporary Restraining Order (TRO)
A short-term, emergency order—sometimes issued without notice—intended to prevent immediate and irreparable harm until the court can hold a preliminary injunction hearing.

Key Term: Status Quo
The last peaceful, non-disputed state of affairs existing before the conduct at issue; pretrial injunctions are designed primarily to preserve this condition.

Preliminary injunctions and TROs may be prohibitory (ordering a party not to act) or mandatory (ordering affirmative conduct, such as returning property). Mandatory orders are more intrusive and courts are especially cautious about granting them; on the MBE, expect a higher showing of need for mandatory relief.

Key Term: Prohibitory Injunction
An order directing a party to refrain from specified conduct.

Key Term: Mandatory Injunction
An order directing a party to take specified affirmative actions.

When the requested order would essentially give the plaintiff all the relief it could obtain after a full trial (for example, compelling delivery of the disputed property), courts often describe this as “granting the ultimate relief” or overturning, rather than preserving, the status quo. On the exam, this typically triggers stricter scrutiny and a requirement for especially strong proof on the preliminary injunction factors.

Legal Standards for Preliminary Injunctions

To obtain a preliminary injunction in federal court, the moving party must generally make a clear showing of four elements (reflected in Supreme Court precedent and consistent with Rule 65 practice):

1. Likelihood of success on the merits
   The movant must show that, based on the available record, it is likely—not merely possible—that it will ultimately prevail on the claim asserted.

2. Likelihood of irreparable harm without the injunction
   The movant must demonstrate that, absent interim relief, it will suffer harm that cannot be adequately remedied by money damages or a later judgment.

3. Balance of equities (hardships) favors the movant
   The court compares the harm to the movant if relief is denied with the harm to the nonmovant if relief is granted. The balance must tip in the movant’s favor.

4. Public interest supports the injunction
   The court considers the effect of relief on nonparties and broader policy concerns (for example, public safety or free speech).

Key Term: Irreparable Harm
Harm that cannot be adequately compensated by money damages or fully undone by a later judgment on the merits.

All four factors must be satisfied in federal practice. Some courts describe a “sliding scale” (stronger merits showing can somewhat offset a weaker hardship showing), but for MBE purposes you should treat all four factors as required. In particular:

• Irreparable harm is often the controlling factor. If money damages can make the movant whole, injunctive relief is generally inappropriate.
• Likelihood of success requires more than a non-frivolous claim or “serious questions”; there must be a reasoned prediction that the movant will probably win at final judgment.

Breaking Down the Factors

• Likelihood of Success on the Merits

  The court does a predictive, not final, assessment. It may consider:

  • Strength of legal theory
  • Available evidence (documents, witness declarations, expert reports)
  • Any obvious affirmative defenses (limitations, immunity, preemption)

  The movant does not need to prove its case, but must show more than a “better than zero” chance. On an MBE fact pattern, explicit statements like “P is almost certain to prevail” or “D’s defense is weak and unlikely to succeed” usually satisfy this factor.

• Likelihood of Irreparable Harm

  The harm must be:

  • Imminent: likely to occur before final judgment or before a full hearing can be held.
  • Irreparable: not fully compensable with damages or otherwise remedied later.

  Common examples of irreparable harm:

  • Loss of constitutional rights (for example, First Amendment violations).
  • Disclosure of trade secrets or confidential information.
  • Destruction of unique goods or real property interests.
  • Loss of business goodwill or customer relationships, when difficult to quantify.

  By contrast, lost sales that can be quantified and compensated with money usually are not irreparable.

• Balance of Equities

  Courts weigh:

  • Harm to the movant if relief is denied.
  • Harm to the nonmovant if relief is granted.
  • Whether either party’s harm is self-inflicted (for example, movant delayed seeking relief, allowing the situation to worsen).

  This factor often overlaps with irreparable harm, but focuses on comparative hardship. On the exam, if granting the injunction would impose severe, nonrecoupable harm on the nonmovant (closing a business, disrupting public services), the balance may not favor the movant even if its own harm is serious.

• Public Interest

  Especially important when:

  • The government is a party.
  • The injunction affects nonparties (for example, environmental regulation, public safety).

  Courts consider whether the requested relief aligns with statutory policies, constitutional interests, or broader public concerns.

A preliminary injunction is an extraordinary remedy. The movant bears the burden of persuasion on each element and must support the motion with evidence (often affidavits, declarations, documentary exhibits, or limited live testimony). Because this is not a full trial, the court may rely on written submissions and somewhat relaxed evidentiary rules, but there must still be a factual basis for the order.

Relation to Final (Permanent) Injunctions

The standard for a permanent injunction is similar but applied after a full adjudication on the merits:

• Actual success on the merits (not just likelihood).
• Irreparable injury.
• Balance of hardships.
• Public interest.

Preliminary injunctions are thus forward-looking and predictive; permanent injunctions are backward-looking (after liability is established). On the MBE, be careful to identify which stage the case is at.

Procedural Features of Preliminary Injunctions

Key procedural points under Rule 65(a):

• Notice and hearing required
  A preliminary injunction cannot be issued ex parte. The adverse party must receive notice and an opportunity to be heard (typically through briefing and a hearing). “Notice” here refers to notice of the request for an injunction—not merely notice of the lawsuit.

• Nature of the hearing
  The hearing need not be a full trial with witnesses and cross-examination, but it must provide a meaningful chance for the nonmovant to present evidence and argument. Courts may:

  • Rely heavily on affidavits and declarations.
  • Allow limited live testimony or cross-examination on disputed facts.
  • Impose page limits or time restrictions.

  On an exam fact pattern, if the judge grants a preliminary injunction immediately upon filing, without any notice or opportunity to respond, that is improper; at most, a TRO might be available.

• Timing and consolidation
  The court may advance the trial on the merits and consolidate it with the preliminary injunction hearing, but only with appropriate notice. Rule 65(a)(2) authorizes this to avoid duplicative proceedings:

  • The parties must be given clear notice that the hearing is being consolidated with trial.
  • They must have a fair chance to present full trial-level evidence.

  The MBE may test a scenario where a court “converts” a preliminary injunction hearing into a trial without warning; that is improper and may violate due process.

• Duration
  The preliminary injunction remains in effect until final judgment or until the court modifies or dissolves it. Either party may later move to modify or dissolve based on changed circumstances (for example, new evidence, changes in the law, or shifts in factual conditions).

• Security (bond)
  Except when the United States or a federal officer/agency is the movant, the court must require the movant to post a bond or other security to cover costs and damages if the injunction is later determined to have been wrongful.

Key Term: Bond (Security)
Money or other security posted by the movant as a condition of injunctive relief, to cover damages sustained by a party wrongfully enjoined.

The amount is set in the court’s discretion and should roughly correspond to the risk of harm to the restrained party. If the injunction is ultimately found to be improper, the restrained party’s primary remedy is an action against the bond (often limited to the bond amount).

On the MBE, remember:

• A bond is mandatory under Rule 65(c), unless the movant is the United States.
• Failure to require a bond is error, but some courts still allow limited recovery even when no bond was required. The key exam point is that a bond should have been required.

Legal Standards for Temporary Restraining Orders (TROs)

A TRO is designed to address situations in which the movant cannot wait for a preliminary injunction hearing without suffering immediate harm.

A TRO may be granted if:

• The movant shows that immediate and irreparable injury will occur before a preliminary injunction hearing can be held; and
• The order is necessary to preserve the status quo long enough to allow that hearing.

Key Term: Adequate Remedy at Law
A remedy at law (usually money damages) is “adequate” if it fully compensates the plaintiff for the injury. If damages are adequate, equitable relief such as a TRO or preliminary injunction is usually inappropriate.

A TRO can be issued with notice (after an expedited hearing where the adverse party has a chance to respond) or, in very narrow circumstances, without notice to the adverse party.

Even when a TRO is issued with notice, it is still intended to be short-lived and focused on stabilizing the situation until a more complete preliminary injunction hearing can occur.

Ex Parte TROs: Strict Requirements

Because ex parte relief is one-sided and raises serious due process concerns, Rule 65(b) imposes strict conditions before a court may issue a TRO without notice:

1. Specific facts showing immediate and irreparable injury
   The movant must present specific facts—usually in an affidavit or verified complaint—showing that the injury will occur before the adverse party can be heard. Conclusory assertions are insufficient.

2. Written certification regarding notice
   The movant or its attorney must certify in writing:

   • What efforts have been made to give notice, and
   • Why notice should not be required (for example, the adverse party would destroy evidence or property upon learning of the lawsuit).

3. Security (bond)
   As with preliminary injunctions, the court must require the movant to give security, except when the movant is the United States or a federal officer/agency.

Key Term: Ex Parte TRO
A temporary restraining order issued without prior notice to the adverse party, permitted only when strict factual and certification requirements are satisfied.

The procedural safeguards do not stop at the threshold. A TRO issued without notice must:

• State the injury and why it is irreparable.
• State why the order was granted without notice.
• Describe in detail the acts restrained or required.
• Be limited in duration to 14 days, unless extended for good cause or consented to by the restrained party.>
• Set a prompt hearing date for a preliminary injunction (so that the restrained party can be heard as soon as possible).

Failure to satisfy any of these requirements makes the ex parte TRO vulnerable to attack and, on the exam, typically invalid.

Duration and Extension of TROs

Rule 65(b)(2) limits a TRO issued without notice to no more than 14 days, unless:

• The court extends it for an additional like period (another 14 days) for good cause shown, or
• The party restrained consents to a longer extension.

If a TRO is extended or renewed so that it remains in effect for more than 28 days from its original issuance, it is treated as a preliminary injunction for purposes of appeal (and may begin to raise due process concerns if the adverse party has not had a meaningful opportunity to be heard).

A TRO issued with notice is not subject to the same strict 14-day cap, but courts ordinarily apply similar limits because the TRO is meant to be short-lived, pending a full preliminary injunction determination. When a TRO with notice remains in effect for a lengthy period after a full adversarial hearing, appellate courts may treat it as a preliminary injunction.

Under Rule 65(b), when a TRO is issued without notice:

• The restrained party may move to dissolve or modify the TRO on 2 days’ notice to the movant (or on shorter notice as the court allows).
• The court must then hear and decide the motion as promptly as justice requires.

Key Term: Actual Notice
Personal knowledge of an order’s existence and terms (for example, through service or communication) required before a person can be held in contempt for violating it.

Critically, actual notice of the TRO or injunction is required before a party (or nonparty bound by the order) can be held in contempt for violating it. Service of the order is the usual mechanism, but any means that gives the person actual knowledge (for example, email, in-person announcement in court) can suffice.

Procedural Safeguards Under Rule 65

Rule 65 builds in several safeguards to protect due process and provide clarity:

• Notice

  • Preliminary injunctions always require notice and a meaningful opportunity to be heard.
  • TROs may be ex parte only if the stringent requirements described above are met and clearly documented. Courts must still schedule a prompt hearing on a preliminary injunction.

• Bond

  • Courts “must” require security from the movant for both TROs and preliminary injunctions unless the movant is the United States or a federal officer/agency.
  • If the injunction is later determined to have been wrongful, recovery against the bond is the usual remedy.

• Specificity and clarity

  Every injunction or TRO must:

  • State the reasons why it issued.
  • Be specific in its terms.
  • Describe in reasonable detail the acts restrained or required, and
  • Not incorporate other documents (like the complaint) by reference as a substitute for describing the prohibited conduct.

Key Term: Specificity Requirement
The obligation that an injunction or TRO describe the prohibited or required conduct in clear, detailed terms so that those bound by the order know what is required for compliance.

Orders that merely say “obey the law” or incorporate the entire complaint by reference violate this requirement and are improper. On the MBE, if the order is vague or general, the best answer usually recognizes that it cannot be enforced through contempt.

• Persons bound

  Under Rule 65(d), an injunctive order binds:

  • The parties.
  • Their officers, agents, servants, employees, and attorneys.
  • Other persons who are in active concert or participation with them, provided they receive actual notice of the order.

This allows the court to prevent parties from evading the order indirectly through third parties acting on their behalf (for example, using affiliates or employees to carry out enjoined conduct).

Appealability

Federal law allows immediate appeal from certain interlocutory orders involving injunctions:

• Preliminary injunctions

  Orders granting, denying, modifying, or dissolving a preliminary injunction are immediately appealable as of right. They fall within a statutory exception to the usual final-judgment rule (28 U.S.C. § 1292(a)(1)).

• Orders with the practical effect of an injunction

  Some orders, though not labeled “preliminary injunctions,” may have the practical effect of granting or denying injunctive relief. If they have serious, perhaps irreparable, consequences and can only be effectively reviewed by immediate appeal, they may also be appealable under § 1292(a)(1).

• TROs

  TROs are generally not immediately appealable, because they are short-term and designed to last only until a preliminary injunction hearing can be held.
  However, when a TRO effectively functions as a preliminary injunction—for example:

  • It is extended beyond 28 days without consent, or
  • It is issued after a full adversarial hearing on the merits—

  appellate courts may treat it as an appealable preliminary injunction.

Key Term: Interlocutory Appeal
An appeal taken before final judgment, authorized in specific categories such as orders regarding injunctions.

On the MBE, carefully distinguish:

• A true, short-lived TRO issued at the outset of the case, versus
• An order, called a TRO, that follows notice and a full hearing or persists for many weeks.

The latter is likely treated as a preliminary injunction and thus immediately appealable.

Appellate courts review:

• Legal conclusions de novo.
• Factual findings for clear error.
• The ultimate decision to grant or deny preliminary relief for abuse of discretion.

Enforcement and Contempt

Violating a TRO or preliminary injunction can lead to contempt of court:

• Civil contempt
  Used to coerce compliance with the order or compensate the injured party. The contemnor may be fined or, in some cases, jailed until they comply (for coercive civil contempt). Compensatory civil contempt awards money to the injured party for losses caused by the violation.

• Criminal contempt
  Punishes past disobedience of a court order. Criminal contempt carries punitive sanctions (fixed fines, definite jail terms) and requires additional procedural protections (such as notice, the right to counsel, and, for serious penalties, a jury trial).

Key Term: Contempt
A court’s power to punish or coerce compliance when a party or person bound by an order knowingly violates it.

Even if a party believes a TRO or injunction is legally incorrect, the proper course is to seek modification, dissolution, or appellate review—not to ignore the order. Under the “collateral bar” rule, disobedience can be punished even if the order is later reversed, so long as the issuing court had jurisdiction and the order was not transparently void.

Civil contempt requires:

• A clear and unambiguous order.
• Proof of violation.
• Evidence that the contemnor had the ability to comply (for coercive sanctions).

On the exam, if the order was procedurally defective (for example, ex parte TRO issued without the required certification) and a party violated it, answers may diverge. Typically, the best answer notes both:

• The order should not have been issued in that form; but
• If the party had actual notice, the court may still use contempt power, though some courts would decline to enforce a plainly defective ex parte order through contempt.

Worked Example 1.1

A plaintiff sues a competitor for trademark infringement and seeks a preliminary injunction to stop the alleged misuse of its mark. The plaintiff files a motion and serves notice on the defendant. At the hearing, the plaintiff shows a strong likelihood of success, but the court finds that any harm can be remedied by money damages at trial.

Answer:
The court should deny the preliminary injunction. Although the plaintiff has shown likely success, it has not shown irreparable harm. Because money damages would be adequate, the “no adequate remedy at law/irreparable harm” element is missing, and preliminary injunctive relief is not appropriate.

Worked Example 1.2

A landlord learns that a tenant is about to destroy valuable fixtures in a leased property. The landlord files for a TRO without notice, filing a verified complaint that details the tenant’s plans and certifying in writing that the tenant will remove the fixtures before a hearing can be held and that any attempt to give notice would trigger immediate destruction. The court issues a TRO for 14 days, restraining the tenant from removing or damaging the fixtures and requiring the landlord to post security.

Answer:
The court’s TRO is valid. The landlord submitted specific facts showing immediate, irreparable injury, certified efforts and reasons for not giving notice, and posted security. The order states the injury, explains the lack of notice, and is limited to 14 days, consistent with Rule 65(b).

Worked Example 1.3

A plaintiff obtains an ex parte TRO against a defendant but fails to file any written certification describing efforts to give notice or explaining why notice should not be required. The TRO otherwise states the injury and lasts for seven days. The defendant violates the TRO and the court considers holding the defendant in contempt.

Answer:
The TRO is procedurally defective because the movant did not provide the required written certification regarding notice. A court should not issue an ex parte TRO without this certification. If the defendant had actual notice of the order, contempt is still possible, but on the exam the better view is that the order was improperly issued and the judge should decline to enforce a defective ex parte TRO through contempt.

Worked Example 1.4

A court issues a TRO without notice on Day 1, limiting it to 14 days. On Day 14, the court, for good cause shown and over the restrained party’s objection, extends the TRO for another 14 days, without holding a preliminary injunction hearing. On Day 30, the restrained party seeks to take an immediate appeal from the order.

Answer:
The restrained party may take an interlocutory appeal. Once a TRO issued without notice is extended so that it remains in force for more than 28 days from issuance, it is treated as a preliminary injunction for appeal purposes. The extension beyond 28 days triggers immediate appealability.

Worked Example 1.5

A court grants a preliminary injunction after notice and a hearing but, contrary to Rule 65(c), does not require the plaintiff to post any security. The defendant later proves that the injunction was wrongful and seeks damages for lost profits.

Answer:
The court erred by failing to require security (unless the plaintiff was the United States, which these facts do not indicate). The usual measure of damages for a wrongful injunction is limited by the bond. If no bond was required, some courts limit or deny recovery; on the MBE, the key point is that a bond should have been required as a procedural safeguard.

Worked Example 1.6

A preliminary injunction prohibits a corporation from using a particular customer list. The order states that it binds the parties and “all others acting in concert” who receive actual notice. A former employee, not named in the lawsuit, helps the corporation violate the injunction after being emailed a copy of the order.

Answer:
The former employee can be held in contempt. Rule 65(d) binds not only the parties but also their officers, agents, employees, and others in active concert or participation with them who have actual notice. The former employee, acting in concert with the corporation and with actual notice, is within the class of persons bound.

Worked Example 1.7

The district court denies a motion for a preliminary injunction after a hearing, concluding that the plaintiff has not shown a likelihood of success on the merits. The case otherwise proceeds toward trial. The plaintiff wishes to challenge the denial immediately in the court of appeals.

Answer:
The plaintiff may file an interlocutory appeal. Orders granting or denying preliminary injunctions are immediately appealable under the statutory exception for injunction-related orders, even though the case has not yet gone to final judgment.

Worked Example 1.8

In a copyright case, the plaintiff moves for a preliminary injunction to stop alleged infringement. The court conducts a two-day evidentiary hearing with live witnesses and extensive exhibits. At the start of the hearing, the court states that it will “decide everything now” and enters an order at the end permanently enjoining the defendant, without ever saying it is consolidating the hearing with trial on the merits.

Answer:
The court acted improperly by effectively converting the preliminary injunction hearing into a trial on the merits without providing clear notice under Rule 65(a)(2). Consolidation of the preliminary injunction hearing with trial is allowed only when the parties receive adequate notice and an opportunity to present their full trial case. On the exam, the order should be treated as procedurally defective.

Worked Example 1.9

After a preliminary injunction has been in place for six months ordering a factory to reduce emissions, the defendant presents new scientific evidence showing that the emissions at the enjoined level pose no health risk. The defendant moves to dissolve or modify the injunction.

Answer:
The motion should be considered on its merits. Preliminary injunctions are always subject to modification or dissolution based on changed circumstances or new evidence. The court should reassess the injunction factors (especially irreparable harm and public interest) in light of the new information, and may narrow, dissolve, or leave the injunction in place depending on that reassessment.

Worked Example 1.10

A plaintiff sues a former employee for misappropriation of trade secrets and seeks an order requiring the employee to turn over all copies of a confidential algorithm and to stop using it. The employee argues that this would effectively give the plaintiff all the relief it could obtain after trial and therefore the standard for a preliminary injunction is higher.

Answer:
The requested injunction is mandatory and would effectively grant much of the ultimate relief. Courts are more cautious in such cases and typically require a very strong showing on the preliminary injunction factors, particularly likelihood of success and irreparable harm. On an exam, you should recognize that such “mandatory” preliminary relief is disfavored and is granted only in clear cases.

Exam Warning

A common MBE trap is confusing the requirements for TROs with those for preliminary injunctions. TROs can be issued without notice only in genuine emergencies and require strict written certification, are short in duration (typically 14 days, extendable once), and are usually not immediately appealable. Preliminary injunctions always require notice and a hearing and are immediately appealable.

Other frequent pitfalls:

• Treating any significant harm as “irreparable” without considering whether money damages would suffice.
• Ignoring the bond requirement.
• Assuming that labeling an order a “TRO” controls its appealability, when the actual duration and procedures used are decisive.

Revision Tip

When analyzing a fact pattern, identify (1) whether the party seeks a TRO or a preliminary injunction, (2) whether notice was given, and (3) how long the order lasts. These three features often determine which Rule 65 requirements apply and whether an immediate appeal or contempt sanction is proper.

Key Point Checklist

This article has covered the following key knowledge points:

• Preliminary injunctions and TROs are interlocutory remedies designed to prevent irreparable harm and preserve the status quo before final judgment.
• A preliminary injunction requires: likelihood of success on the merits, likelihood of irreparable harm, a balance of equities favoring the movant, and consistency with the public interest.
• Preliminary injunctions cannot be issued ex parte; they require notice and an opportunity to be heard.
• TROs may be granted without notice only if the movant provides specific facts showing immediate irreparable injury and a written certification of efforts to give notice and reasons why notice should not be required.
• An ex parte TRO must state the reasons for issuance, describe the injury and why it is irreparable, explain the absence of notice, and is limited to 14 days (extendable once for good cause or by consent). Beyond 28 days it is treated as a preliminary injunction for appeal purposes.
• Courts must ordinarily require the movant to post security (a bond) for both TROs and preliminary injunctions, except when the United States or a federal officer/agency is the movant.
• Injunctions and TROs must be specific and clear in their terms and bind parties, their agents, and others in active concert with actual notice.
• Orders granting, denying, modifying, or dissolving preliminary injunctions are immediately appealable; TROs generally are not, unless they effectively function as preliminary injunctions.
• Violating an injunction or TRO after actual notice may result in civil or criminal contempt, with possible fines, coercive sanctions, or imprisonment.
• Preliminary injunction hearings may be consolidated with trial on the merits only with clear notice, and preliminary injunctions may later be modified or dissolved based on changed circumstances.

Key Terms and Concepts

• Interlocutory Injunction
• Preliminary Injunction
• Temporary Restraining Order (TRO)
• Status Quo
• Prohibitory Injunction
• Mandatory Injunction
• Permanent Injunction
• Irreparable Harm
• Adequate Remedy at Law
• Bond (Security)
• Ex Parte TRO
• Actual Notice
• Specificity Requirement
• Interlocutory Appeal
• Contempt