An Injunction by any Other Name: Mandatory and Prohibitory Preliminary Injunctions

By Khai LeQuang

Whether a proposed preliminary injunction appears to be mandatory or prohibitory can make all the difference when convincing a trial judge that she or he is doing the right thing in issuing or denying an injunction before trial. But not only is a mandatory injunction more difficult to obtain, it is automatically stayed on appeal and subject to closer appellate review. A party, therefore, should carefully consider what to ask for when seeking a preliminary injunction. While it may feel an aggressive mandatory injunction is necessary to protect all of its interests, it may be better to ask for less to secure an injunction that will last. That is because even if the trial court finds that a mandatory injunction is justified, the result may be a hollow victory if it issues an injunction that is automatically stayed for months or even longer during an appeal. On the flip side, a party opposing a preliminary injunction should always look closely at whether a proposed injunction, even if phrased in prohibitory terms, is mandatory in nature. Virtually any injunction can be described either as mandatory or prohibitory; the challenge lies in accurately identifying its true purpose and effect.

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What’s in a Name? Why the Difference Makes a Difference