Law Commons^™

Remedies For Wrong Preliminary Injunctions: The Case For Disgorgement Of Profits, Ofer Grosskopf

Ofer Grosskopf

The remedy available for those enjoined by a wrong preliminary injunction affects both the incentives of litigants to apply for preliminary injunctions and the scope of the irreparable social harms inflicted when a preliminary injunction is issued. This Article demonstrates that efficiency-based considerations yield the idea that the moving-party should be required to compensate the defendant for only part of the harms inflicted due to the wrong preliminary injunction. Moreover, these considerations support the use of the remedy of restitution, which requires the moving-party to disgorge the benefits obtained at the expense of the defendant by the wrong preliminary injunction. …