Litigation: Don’t Dismiss Injunctive Relief

Seeking injunctive relief can be a daunting task. Most attorneys are familiar with the four-factor test that courts apply when ruling on a request for injunctive relief. In the District of Columbia, as in most jurisdictions, “[t]he movant must show a substantial likelihood of success on the merits, and that irreparable harm would flow from the denial of an injunction. In addition, the trial judge must consider the inconvenience that an injunction would cause the opposing party, and must weigh the public interest as well.” [Quaker Action Group v. Hickel, 421 F.2d 1111, 1116 (D.C. Cir. 1969).]

One factor that often presents problems for parties involved in business disputes is the “irreparable harm” factor. Normally, monetary injury does not meet the criteria for irreparable harm because money is fungible and usually can be recovered from the person or entity purportedly liable to the plaintiff. However, Justice Scalia recently clarified that some financial losses do qualify as irreparable harm. “Normally the mere payment of money is not considered irreparable … but that is because money can usually be recovered from the person to whom it is paid. If expenditures cannot be recouped, the resulting loss may be irreparable.” [Philip Morris USA Inc. v. Scott, 177 L. Ed. 2d 1040, 1043 (U.S. 2010) (citation omitted).]

In sum, attorneys representing aggrieved parties should not rule out moving for injunctive relief even if the alleged harm is monetary in nature. In several situations, courts have held that a party facing only a financial risk might still be able to demonstrate the “irreparable harm” necessary to obtain a preliminary injunction.

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Adam Feinberg is Chair of the Litigation Department at Miller & Chevalier Chartered in Washington, DC.