![]() Request for a Preemptive Injunction employ to maximize your likelihood of success. The first and most important thing you can do is reevaluate all of your contracts now. Each contract should specify what constitutes an irreparable harm. For example, contract language that "the parties agree that any default in their obligations as set forth in this contract will irreparably harm their business reputation and goodwill and cannot be compensated by money damages." If litigation is likely, also do the following: remotely likely, issue a litigation hold letter to your team immediately. This way, the evidence your company needs to prove its case is accessible. Litigation hold letters require employees to suspend all protocols that relate to destruction of data that may be relevant to the potential litigation (for example, automatic email purging.) Accessibility is crucial for two reasons. First, the sooner and easier you can produce key evidence, the sooner and easier it is to file for an injunction with your court. Second, and perhaps more importantly, opponents often claim they "need discovery" for the sole purpose of slowing down the injunction process and to gain leverage in negotiations. By comparison, great companies identity their key players likely to be in possession of relevant material, inventory it and have it ready to provide to the opponent immediately. the irreparable harm your company will suffer without an injunction. Courts equate "irreparable harm" with "emergency," and the longer your the less likely you are to convince a judge there is an emergency. Judges, like all people, also respond better to concrete examples like the Tier III supplier that will go out of business or the contract that will go unfilled, causing job loss so be sure to provide as much detail as possible. Vague statements of "business loss" are unpersuasive and, moreover, are what money damages compensate. The goal for an injunction petition is to show why money damages are insufficient. Provide the court with affidavits from your suppliers, plant managers, accountants, etc., and copies of contracts that will go unfulfilled. For supply chain cases, provide photographs and replicas showing why your company's part is essential to the whole, photographs of shops that will close, etc. The point is to provide the court with a vivid picture and persuasive case that irreparable harm that will result. show the extent of damage that will be done without an injunction. In all states, business records are admissible into evidence so long as they are maintained in the regular course of business and contain information that the business typically records (for example, profit and loss statements). Market reports are also generally admissible as public records, provided they are from a reliable source, such as a public or academic reporting body. Both will show your company's reach over the market and the number of interests at stake in the case. and damage to business reputation are irreparable harms. So, emphasize them! For an injunction to issue, the court must find the harm is not fully compensable by money damages (such as, for example, ordering your company's opponent to pay you the difference for having to secure your part from another supplier). See 511 (6th Cir.1992). The likely interference with customer relationships resulting from the breach of a contract is the kind of injury for which monetary damages are difficult to calculate. "The loss of customer goodwill often amounts to irreparable injury because the damages flowing from such losses are difficult to compute. Similarly, the loss of fair competition that results from the breach of a non-competition covenant is likely to irreparably harm an employer." Id. at 512 (internal citations omitted). Vague statements about "harm to goodwill" are unpersuasive discuss it with specific examples, by reference to connections in the community. For example, if your company's loss will cause a local plant to shut down, or render your company in breach of another contract or render inept to negotiate, say so. Now is the time when (appropriately placed) self- promotion is necessary. Have an executive available to sign an affidavit and testify. is a two-step process: a temporary, or preliminary, injunction issues while the case is scheduled for trial to determine whether a permanent injunction should issue. In the meantime, your opponent will request discovery (see point A) and leverage you to settle out of fear that the case will not resolve before time is up for your company. This is a particular risk for courts that do not have mandatory decision deadlines. In those courts, your case could proceed to trial and yet not decision issue before your contract expires. To avoid these risks, in your petition ask that the court consolidate the process. Rather than decide first whether a temporary injunction should issue, set an immediate trial on the merits. Your ability to offer discovery on a short turnaround time, thanks to that litigation hold letter, will go far here. Strike promptly, and strike thoroughly, and you will likely stop your rogue supplier in the name of the law from dismantling your business once and for all. |