What a TRO actually is, and how you beat one in seventy-two hours.

The emergency order that freezes a business is the most frightening paper a defendant ever receives, and the most winnable. Here is what the plaintiff has to prove, and where it usually falls apart.

A temporary restraining order is a short-term court order that tells you to stop doing something — moving money, selling an asset, using a customer list, running the company the way you have been running it — until a judge can hold a real hearing. It is temporary by design. It is not a finding that you did anything wrong.

Two features make it frightening. The first is speed: a TRO can be signed within days of the complaint. The second is that it is often granted ex parte — the plaintiff walked into court and got it without you in the room. Owners read that as the judge taking the other side. It is not. On an ex parte application the judge has heard one story.

What the plaintiff has to prove

To hold an injunction in New York, a plaintiff has to establish three things, and he has to establish all of them:

• Likelihood of success on the merits. A real, provable claim — not a grievance, not a suspicion.
• Irreparable injury absent the order. Harm that money cannot fix afterwards.
• A balance of equities in his favor. The harm the order prevents has to outweigh the harm the order causes.

CPLR 6301, 6312, 6313.

He must clear every one of them. You only have to hold one.

Where these applications actually fail

Irreparable harm is the weak point, and it is weak in almost every business case. Irreparable means an injury a damages award cannot repair. A dispute about unpaid invoices, a disputed distribution, a salary that was cut, a price that should have been higher — those are money. A plaintiff who can tell the court exactly how much he lost has told the court his injury is compensable, which is the opposite of irreparable.

A plaintiff who can name the number has just explained why he does not need an injunction.

The second weak point is scope. Emergency applications are usually drafted broadly, because the lawyer drafting one at speed asks for everything. An order that freezes ordinary operations — payroll, vendor payments, the normal course of the business — is far more vulnerable than a narrow one. Judges do not want to be the reason a going concern stops going. Attacking the breadth of the order is often easier than attacking the whole thing, and a narrowed order is frequently a defeat for the plaintiff in everything but name.

The third is the undertaking. A plaintiff who obtains a preliminary injunction must post security to cover the damage he causes if it turns out he was not entitled to it. That number gets argued, and arguing it seriously changes the conversation: the plaintiff has to put his own money behind his certainty.

CPLR 6312(b).

The first seventy-two hours

What you do in the first three days decides most of this.

1. Read the order and obey it exactly. Not the spirit of it, the text of it. Violating a TRO turns a commercial dispute into a contempt proceeding, and no defense survives that.
2. Find the return date. Every TRO has a date when the court hears the preliminary injunction motion. That date, not your answer deadline, is the real clock.
3. Preserve everything. Email, texts, accounting files, the shared drive. Issue a litigation hold and turn off any auto-delete.
4. Change nothing else. No transfers, no locks, no removing anyone’s access, no cleaning up records. Self-help after an emergency application is how a defensible dispute becomes an easy order against you.
5. Get counsel in and get opposition on file. Opposition is built out of affidavits from people with personal knowledge and the documents that contradict the plaintiff’s account. That takes days, not hours, which is why day one matters.

What winning looks like

Winning is rarely the judge announcing you were right. Winning is the order vacated, or narrowed to something you can operate under, or conditioned on a bond the plaintiff does not want to post. Any of those resets the case — because the plaintiff who filed for emergency relief was counting on the leverage of getting it.

A TRO is the plaintiff’s best day in the case. Take it away from him and the rest of the litigation is negotiated on very different terms.