Defending Against a TRO

Someone Just Served You With a TRO. Now What?

Being served with a Temporary Restraining Order is one of the more alarming things that can happen to a business owner or executive. It usually arrives without warning, it takes effect immediately, and it means a judge has ordered you to stop doing something without ever hearing your side of the story.

A TRO is not a final judgment, and it is not a finding that you did anything wrong. It is an emergency measure that lasts at most 14 days, and you have real options starting right now. The first thing to hold onto is that the order you are holding was granted on one side’s version of events. The judge heard only from the person who filed against you. The standard for getting an emergency TRO is deliberately low: the applicant had to show a reasonable likelihood of winning and some form of imminent harm, nothing more. They did not have to prove their case, and they did not have to give you a chance to respond. That happens at the temporary injunction hearing, which has to take place within 14 days. The hearing is your real opportunity, though there are steps worth taking before it arrives.

The First Hours Matter, and So Does Not Making It Worse

Before anything else, read the order closely and understand exactly what it says you cannot do. You need that for two different reasons. You have to comply with it to the letter, and your lawyer needs to know precisely what it prohibits in order to attack it. That close reading often pays off on its own, because a TRO that does not spell out the prohibited conduct may be void on its face. An order that says “Defendant is restrained from violating Plaintiff’s rights as described in the petition” is legally defective. The conduct has to be described in the order itself, in concrete terms, not by pointing back to some other document.

Whatever you find in it, do not violate the order. We are blunt with clients about this. It does not matter that the TRO may be wrong, that it may have been obtained with misleading affidavits, or that it is costing your business real money every day it stands. Your remedy is legal, not self-help. Violating a TRO exposes you to contempt of court, which can mean arrest and jail without bail until the court is satisfied you have purged the violation, and it hands your opponent damaging evidence to wave around at the hearing. The smarter move is to get a lawyer involved the same day. You have 14 days or less, the other side has already spent time building its case, and the clock started running the moment you were served.

Two Ways to Fight Back

You do not necessarily have to wait two weeks for the hearing. On as little as two days’ notice to the other side, you can ask the court to dissolve or modify the TRO, and the court has to hear that motion promptly. A motion to dissolve works best when there is a specific defect in the order itself, and there are a handful we look for first. If the required security bond was not posted before the TRO was served, the order has no legal force at all, whatever the judge signed. If the order is too vague, or refers back to the petition instead of describing the prohibited conduct, it is unenforceable. If the supporting affidavit rests on hearsay or statements made “on information and belief” rather than personal knowledge of specific facts, that is grounds to dissolve. And if the applicant cannot show the injury would truly be irreparable before a normal hearing could be held, the emergency procedure was not justified in the first place.

The other path is to win at the temporary injunction hearing itself. Even if the TRO stands for its full run, the hearing is your day in court, and it is a different animal entirely. Both sides put on evidence, witnesses testify under oath, and the applicant has to actually prove every one of the five required elements rather than assert them in an affidavit. Fail on even one and the temporary injunction is denied and the restraint comes off. A great many TROs do not survive this stage. The story that read as compelling in a one-sided affidavit tends to come apart once it is tested against opposing evidence and cross-examination. Our Temporary Injunction Hearing page goes into more detail on what to expect and how we prepare for it.

What We Look At When You Call

When someone calls us about a TRO they have just been served with, the first thing we do is run through the same short list. Was the bond posted? If it was not, the TRO is void, which is a complete defense when it applies, and it comes up more often than you would think when the applicant moved fast and skipped the technical steps. Is the order specific enough, or does it lean on the petition to do its work? A defective order cannot be enforced and cannot support a contempt finding. Is the underlying claim actually credible? We read the petition and the affidavit right away, because a probable right of recovery means more than simply having filed a lawsuit, and a weak claim can be exposed at the hearing. And what is the real harm to you? Courts have to balance the equities, so if the order is doing far more damage to your business than the harm it claims to prevent, that imbalance becomes an argument for dissolving it.

If the TRO is not dissolved before then, the temporary injunction hearing is where the matter is decided for the duration of the case. If the court denies the injunction, the TRO dissolves, you are no longer restrained, and the lawsuit moves on toward trial without the emergency order hanging over you. If the court grants it, the injunction stays in place until trial, but the court also has to set the case for trial then and there, because a temporary injunction is not allowed to sit in place indefinitely.