The legal world has been waiting years for the Supreme Court of Virginia to affirmatively take a position on the standards for issuance of a preliminary injunction or temporary restraining order. After soliciting feedback this Spring, the Supreme Court issued Va. Sup. Ct. Rule 3:26.

The new rule distinguishes between restraining orders with or without notice to opposing counsel: If no notice is given, an injunction may only be issued based upon “specific facts in an affidavit, a verified complaint or sworn testimony” which clearly show “immediate and irreparable harm” will result before the other party may be heard; and a movant must in writing provide “any effort made to give notice and why it should not be required.” Va. Sup. Ct. R. 3:26.  And this makes sense–an injunction without hearing from the other side should be limited only to the most extreme circumstances.

Otherwise, a movant must show that it will “more likely than not suffer irreparable harm” without the injunction. If this threshold requirement is met, then the court must consider the following factors: 

• Whether the movant asserted “a legally viable claim based on credible facts” demonstrating that they will “more likely than not” succeed on the merits (or, in “exceptional cases,” that the claim has “substantial merit” when the movant may face severe harm and any harm to the nonmoving is slight);
• Whether the balance of hardships favors the injunction;
• Whether the public interest supports the injunction request.

Parties for years had been speculating on whether the Supreme Court would fully adopt the Winter v. Natural Resources Defense Council standard from the United States Supreme Court, or whether it would choose a different test.

The Supreme Court emphasized in Rule 3:26 that it did not modify the requirement that preliminary injunctions be of fixed duration (see Code Section 8.01-624) or that an appeal bond be posted per Va. Code Section 8.01-630 through 633.

Takeaways: Pay close attention to this rule, as if you look only at case law you may not uncover this. The Rule goes into effect on August 4, 2024, but clearly would be persuasive before then.  If you are asking for a temporary injunction (or are responding to one), it is critical to be ready to appeal these as your deadline for an appeal is quick! Va. Supreme Court Rule 5:17A and Va. Code Section 8.01-626 only provide for 15 days in which to file a petition in the Supreme Court for interlocutory review. Don’t forget necessary transcripts and certified copies of relevant portions of the record as trial counsel bears responsibility at this interlocutory stage to furnish this to the Court.

I’ve worked closely with trial counsel to prepare the record and to file a Petition for Review in the Supreme Court per Va. Code Section 8.01-626, and I am always happy to talk shop with trial counsel dealing with these important issues.

Have questions? Contact Me