Preliminary Injunctive Relief

1. Preliminary Injunctive Relief • Relief designed to provide temporary injunction pending a full trial on the merits. • Can be in the form of a “preliminary injunction” (usually after a mini, trial-lite hearing) or a temporary restraining order (usually after an emergency, barely-like-a-hearing-at-all hearing) • What standards apply to granting such injunctions? • How does the irreparable injury/adequate legal remedy rule play out here?

2. Four factors courts consider re preliminary injunctions • Likelihood of success on the merits • Irreparable injury to P in the absence of preliminary relief • Balance of the hardships/equities • Public interest • How do courts apply these factors when considering whether to grant a preliminary injunction?

3. Court’s Different Approaches to the Four-Factor Test Before Winter – Approach # 1 • P must meet all 4 factors to get preliminary injunction; P must show: • Likelihood of success on the merits • Likely will suffer irreparable injury without preliminary injunction • Balance of equities tips in P’s favor • Public Interest Tips in P’s favor • Very strict version of the test for preliminary injunctive relief. Why?

4. Court’s Different Approaches to the Four-Factor Test Before Winter – Approach # 2 • Four factors are applied as a sliding scale: • Courts should balance the interests of all parties and weigh the damage to each, mindful of the moving party’s burden to show the possibility of irreparable injury to itself and the probability of success on the merits. • If you deal better w/ math, can conceptualize the balancing (roughly) as: • Is P X Hp > (1-P)Hd? • Why use a sliding scale version instead of strict version?

5. Winter v. NRDC • Which version of the preliminary injunction test does SCT in Winter use? • Lower courts after Winter:

6. Would it really matter in Winter which version of the test was used? • What is the nature of P’s alleged harm if the injunction doesn’t issue? • What is the nature of D’s alleged harm the injunction issues? • Toward whom does the balance of equities tip? • Where does the public interest lie?

7. The nature of “irreparable” harm at the preliminary injunction stage: • Note that all versions of the test require P to show irreparable harm if the preliminary injunction doesn’t issue. How is this different from the permanent injunction context? • Timing of Harm: • Nature of Harm:

8. Preliminary injunctions & the “status quo” Conventional Wisdom: Preliminary injunctions are only granted to preserve the status quo (aka last peaceable contested status quo). Why?

9. What is the “status quo” – just how manipulable is this concept? Winter: O Centro:

10. What does the “status quo” concept add to courts’ use of the four factor balancing test – i.e., when is it most likely to make a difference?