When crafting requests for injunctive relief, lawyers often counsel clients against overreaching. That’s because should a client seek an order that goes too far, there’s a risk that the request will be rejected wholesale, leaving the client with no relief at all.
Of course, there’s always a chance that a client’s request for injunction will be granted as well. Which means clients must be prepared for the legal and public relations consequences of getting what they asked for. That being said, when framing the injunctive relief to be sought, every client needs to contemplate a very straightforward question: “am I prepared for what happens if the court says yes?”
The recently granted temporary restraining order in a case out of Wisconsin—ThedaCare, Inc. v. Ascension NE Wisconsin, Inc.—illustrates the importance of considering ahead of time what may lie ahead if and when injunctive relief is obtained. As it turns out, the plaintiff’s initial success getting the TRO in ThedaCare frustrated both its litigation strategy and long-term goals.
An Aggressive Approach to the Great Resignation
The Great Resignation (which includes both resignations in favor of other jobs and complete departures from the workforce in the wake of COVID-19) continues to impact employers everywhere, and this is particularly the case in the healthcare sector. Healthcare workers have faced unprecedented challenges during the pandemic and historic levels of burnout, requiring employers to make special efforts to retain employees. For its part, ThedaCare—which operates several healthcare facilities in Wisconsin—resorted to a novel tactic to address the challenges associated with the Great Resignation: a temporary restraining order.
In late January, ThedaCare filed a complaint in state court alleging that a rival facility, Ascension NE Wisconsin Inc, was attempting to “poach” 11 at-will employees of its interventional radiology and cardiovascular team. According to ThedaCare, this activity resulted in 11 resignations and constituted tortious interference with its employment relationships. As alleged by ThedaCare, Ascension “knew or should have known that this action would decimate ThedaCare’s ability to provide critical care at a time of critical need”; namely, the ongoing public health crisis.
ThedaCare’s complaint was accompanied by a motion for a TRO requesting that the court order Ascension to either “make available” to ThedaCare certain members of the interventional radiology and cardiovascular team or, in the alternative, to temporarily refrain from hiring any of the team. ThedaCare argued that permitting Ascension to hire away its employees would cause a “public health calamity.” The court agreed and granted ThedaCare’s motion.
To ThedaCare’s chagrin, this turned into a public relations quagmire after the case was picked up by the news and healthcare providers took to social media to express (understandable) outrage that at-will employees, without non-compete agreements, were being blocked from accepting new employment. No doubt, the bad press certainly complicates the recruitment efforts necessary for ThedaCare to replace the departing employees. To make matters worse, the PR nightmare was all for naught—Ascension filed legal briefs of its own and the court lifted the TRO only a few days later, frustrating ThedaCare’s litigation goals.
This episode teaches an important lesson to those seeking emergency relief from a court: fear not only what happens if a court says “no”; consider, too, what happens if the court says “yes.”
This blog post is not offered, and should not be relied on, as legal advice. You should consult an attorney for advice in specific situations.