United States
No common law right to prejudgment attachment exists in the United States. Attachment may be available as a prejudgment remedy under state statutes addressing the subject. Federal courts may attach property to the extent permitted by the law of the state in which they sit.
A request for a prejudgment attachment or freezing order must be requested from the applicable trial court. A request for attachment or a freezing order may be made at the time the complaint is filed but cannot be requested prior to a suit being commenced. When prejudgment attachment is authorized, courts typically have discretion to issue prejudgment writs of attachment that prevent a defendant from disposing of or hiding tangible or intangible assets that may be used to satisfy any judgment the plaintiff ultimately obtains. A plaintiff seeking prejudgment attachment may be required to post a bond to cover any damage caused to the defendant’s property in the event that the plaintiff does not succeed on its claims.
The criteria for the issue of a prejudgment writ of attachment are similar to the ordinary principles for granting injunctive relief, although courts have recognized that attachment is a severe remedy that is appropriate only if the plaintiff produces evidence showing an appreciable risk of being unable to enforce a future judgment. Relief may not be sought without notice to the other parties. Because the procedure seeks to attach assets prior to a judgment being entered, a court is likely to require a high burden of proof showing that the plaintiff will be entitled to relief once the litigation concludes.
Broadly and generally, a request for prejudgment attachment is assessed across four factors, similar to those used when considering requests for injunctive relief:
- whether the applicant is likely to prevail on the merits of its case;
- whether the refusal of a writ of attachment will give rise to a real risk that the plaintiff will be unable to enforce any judgment rendered in its favor;
- whether the balance of the equities favor the attachment; and
- whether the public interest favors the attachment, meaning that attachment must further an important interest beyond the claims in the litigation itself.
Notable State Variations
- California: By statute, only property located in California is subject to attachment. Property outside the state may not be attached by a California court;
- Delaware: The banking and insurance industries are exempt from prejudgment attachment, both as to deposits held in Delaware as well as any asset owned by an entity that qualifies as a bank; and
- Illinois: By statute, Illinois requires that a plaintiff requesting a writ of attachment post a bond equal to double the value of the property to be attached.