Litigation: The bond requirement for preliminary injunctions

Bond guidelines vary from district to district, so don’t repeat Cracker Barrel’s mistake

One of the most often overlooked aspects of preliminary injunctions and temporary restraining orders (TROs) is the matter of a bond. The traditional requirement, since codified in the Federal Rules of Civil Procedure, is that should a preliminary injunction be granted, the movant be required to post a bond that will reimburse the respondent for any harm done should it turn out that, after discovery or trial, when the facts of the case have been more fully uncovered, the injunction should not have been granted. 

Despite its common sense nature, though, the bond requirement is not always enforced. While several federal circuits have agreed that the bond requirement is mandatory, and waiving it is reversible error, other circuits have interpreted the language of the federal rules differently. They believe that the issue of a bond for preliminary injunctions is discretionary and can be waived by the court. Whether a bond is mandatory or not also varies from state to state, making the existence of a bond requirement another factor to consider when choosing a forum for litigation.

Contributing Author

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Thomas Patterson

Thomas E. Patterson started the Patterson Law Firm in 2000. He has 32 years of experience preparing and trying lawsuits for businesses, professionals and entrepreneurs—often...

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