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Friday, March 22, 2013

TROs and Preliminary Injunctions: The Wine Advocate, Inc. v. Antonio Galloni

Much has been written about the lawsuit filed by Robert Parker's company, The Wine Advocate, Inc. ("TWA"), against Antonio Galloni, specifically on the allegations of fraud, defamation and breach of contract. But buried on page 21 of this 26 page complaint may be one of the most intriguing aspects of this action: a request by TWA for a temporary restraining order ("TRO") and preliminary injunction to enjoin Galloni from "publishing any and all articles and/or tasting notes relating to the Sonoma, Brunello, Barolo and Burgundy wines, and enjoining Defendants' use of Plaintiff's confidential subscriber information …." Should the Court grant TWA a preliminary injunction, then any articles or tasting notes from Galloni's visits to wineries in Sonoma and elsewhere may remain locked up until this case is resolved, which may take multiple months, if not years.

TROs and preliminary injunctions are forms of injunctive relief. They are meant to preserve the status quo by (typically) preventing a party from taking certain actions that would cause irreparable harm to the party seeking injunctive relief. TROs and preliminary injunctions are considered "one of the most drastic tools in the arsenal of judicial remedies."

A party seeking a TRO must file an application requesting that the court preserve the status quo until the court has a chance to hold a hearing on the preliminary injunction motion. If issued, a TRO remains in place until the preliminary injunction hearing date. Time is usually of the essence: a court may conclude that a party that delayed in filing an application for a TRO has failed to demonstrate the urgent need for such extraordinary relief. If the moving party is able to prevail at the preliminary injunction hearing, the court will issue an order prohibiting certain actions by the non-moving party until the case is resolved.

Preliminary injunctions are considered an "extraordinary remedy," and accordingly, moving parties must meet a high standard in order to prevail. A party seeking injunctive relief must show likelihood of success on the merits of its claim and irreparable harm in the absence of a preliminary injunction. The court will also take into consideration the hardship on defendants should an injunction be granted

TWA may not only seek an injunction to prevent Galloni from publishing the tasting notes, but may also demand a court order "forcing" him to produce those notes to TWA. This constitutes a request for "mandatory injunctive relief" - i.e., a court order directing specific conduct by the non-moving party. Courts exercise heightened scrutiny in such situations.

The complaint suggests that TWA will seek a TRO and preliminary injunction in the near future. Indeed, TWA is free to move the court for a TRO at anytime, even before the 21-day time period for defendants to file a formal answer to the complaint has expired. And given the need to show likelihood of success on the merits, TWA will need to provide evidence to support its allegations of wrongdoing and harm. In short, should TWA follow through with its stated plan to seek a TRO and preliminary injunction, it will need to present a preview of its case-in-chief.

A PDF of the complaint is available here: The Wine Advocate, Inc. v. Antonio Galloni.

For more information, please contact John Trinidad (jtrinidad@dpf-law.com) or John Heffner (jheffner@dpf-law.com).

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