Obtaining Emergency Relief in Commercial Cases Amidst the COVID-19 Crisis

Civil litigation often starts with an emergency request to maintain the status quo during the lawsuit or ensure the ability to collect damages after victory.  To obtain a temporary restraining order or preliminary injunction, a plaintiff must show (1) that the plaintiff will suffer irreparable harm absent preliminary injunctive relief during the pendency of the case; (2) inadequate remedies at law exist; and (3) a reasonable likelihood of success on the merits. 

In the midst of the COVID-19 crises, exigent circumstances requiring emergency court relief are becoming more and more common.  Paradoxically, access to courts has dramatically changed, and courts are operating with limited resources as the nation desperately attempts to flatten the curve and follow social distancing guidelines.  Here are a few examples of novel issues presented to American courts on an emergency basis in March 2020.

• Whether Wisconsin’s deadlines for mail-in and absentee ballot voting should be extended and requirements related to proof of residency and voter ID for mail-in and absentee ballot voting should be modified to ensure the constitutional right to vote.  Democratic Nat'l Comm. v. Bostelmann, No. 20-CV-249-WMC, 2020 WL 1320819 (W.D. Wis. Mar. 20, 2020);
• Whether to release alien detainees who suffer from serious chronic medical conditions and who are detained in connection with their removal proceedings in county jails where cases of COVID-19 had been identified.  Basank v. Decker, No. 20 CIV. 2518 (AT), 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020).

Many courts have adopted interim orders governing emergency relief, covering subjects such as what constitutes an emergency matter, whether hearings will proceed virtually, and who may enter a courthouse for emergency in-person proceedings.  These interim orders vary across states, and even among courts within a state, often treating business emergencies differently from, for instance, family or criminal law matters.

Clients – and their attorneys – are wise to choose carefully which issues to raise on an emergency basis.  What public opinion deemed an emergency a few months ago may not be considered an emergency now, and the Courts are not shying away from excoriating parties for taxing the system with frivolous motions for emergency relief.  For instance, one federal New York court denied a request for emergency relief to prevent the defendant from moving a set of microscopes and post a bond until the case was resolved.  Concluding the written decision, the court chastised the plaintiff for bringing the motion, stating:

[T]he timing of this application is even more dubious given the global health crisis caused by the COVID-19 pandemic.  As Plaintiff is no doubt aware, this Court, along with nearly every other court in the country, has severely limited support personnel in an effort to slow the spread of the disease.  Devoting resources to this facially deficient application strains already taxed staff dealing with other substantial matters pending before the Court and is abusive.

FEI Hong Kong Co. Ltd. v. GlobalFoundries, Inc., No. 1:20-CV-02342-MKV, 2020 WL 1444956, at *3 (S.D.N.Y. Mar. 25, 2020); see also Art Ask Agency v. Individuals, Corps., Ltd. Liab. Cos, P’ships & Unincorporated Assocs. Identified on Schedule A Hereto, No. 20-CV-1666, 2020 WL 1427085, at *2 (N.D. Ill. Mar. 18, 2020) (“The world is facing a real emergency. Plaintiff is not.”).

Before moving for emergency relief, consider whether the nature of the motion will be perceived as an emergency by the court.  Is public health, safety, or liberty at stake?  Will failure to obtain relief – now – spell the end of a business?  Will the relief enable the company to make payroll and save jobs?  Can the sought-after relief wait a few weeks or months until American courts have greater resources and fewer COVID-19-related emergency matters?  Your Robins Kaplan team is thinking about these, and many other, issues affecting business litigation during the COVID-19 crisis and we are ready to speak with you about these considerations when preparing your court filings.

Our team is ready to help you address these issues and any others you may have during this difficult time. Please reach out to your regular Robins Kaplan contact or email us here.