Arkema, Inc. v. The Dow Chemical Co., C.A. No. 5479-VCP (May 14, 2010). The redacted letter ruling, granting a TRO, was released to the public on May 25, 2010, and is available here.
This letter decision was published about 10 days after it was provided to the parties, and only after portions were redacted, presumably to protect trade secrets and/or commercially sensitive data.
The familiar prerequisites for a TRO are recited by the Court of Chancery in the context of an alleged breach of a supply contract and the inability of one party to cover as a result of the breach. Also noteworthy is the interplay between the TRO and the expedited hearing for a preliminary injunction. Importantly, the Court observed that where a TRO would grant the same measure of relief that would follow a trial, or if the TRO is mandatory in nature, a higher showing is required, such that the right to relief must be clearly established and there can be no material issues of fact. See footnotes 24 to 30 for supporting cases. Allegations of permanent harm to goodwill and reputation was also cited as a basis for seeking the TRO.
See also cases cited at footnote 35 for the Court’s statement of law that when the threat of irreparable injury is shown, injunctive relief should follow unless there is no support at all for the remaining two elements. Nonetheless, the Court discussed the other two requirements and found them to be satisfied. The Court also required an unsecured bond in the amount of $500,000. in light of the harm that could be suffered by Dow if it turned out that the TRO was improvidently granted.
The grant of the TRO is only the beginning of a "fire drill or a rollercoaster ride" that marks the short period until the preliminary injunction hearing (in this case about three weeks), and thereafter an expedited timetable for a full trial.