Courts formulate the tests and ask the questions they do because they are worried about the risk of ERROR (since this is before an adjudication on the merits)

Preliminary Injunction: Enjoining Defendant before a full case on the merits is held. Focus of the preliminary injunction hearing is on the irreversible harm that will happen BEFORE trial.

Allowing preliminary injunctions (1) increase the risk of error (i.e. a COURT potentially inflicting permanent irreparable injury on a plaintiff by erroneously denying a preliminary injunction, allowing defendant to harm plaintiff during the inevitable delays of litigation; and (2) creates a risk that a COURT may inflict permanent irreparable injury on a DEFENDANT by issuing a preliminary injunction that should never have issued (After a final decision is rendered, we can obviously know whether an injunction show issue or not, but at the preliminary state we do not know fully)
- Posner-Leubsdorf insight is at the preliminary injunction state, courts should minimize the sum of these two risks. The sliding scale approach of the Winter test in lower courts substantially implements that insight.
  - Note that Posner has the right idea, but his formula, taken on its face, assumes an equal probability of success and probability of harm (which was not the same in Lakeshore) nor does he consider that there are many possible harms all with different probabilities.

TEST to get a Preliminary Injunction: A Plaintiff seeking a preliminary injunction must establish [Winter v. Natural Resource Defense Council] [FORK – this court says must meet all 4, other courts say sliding scale]

(1) That he is likely to succeed on the merits
1. Does not only mean a possibility, must be likely
  1. What likely means is ambiguous, maybe means 51% maybe it does not. Maybe a 20% likelihood can be overcome by a very significant irreparable harm (death maybe). Use it in the sliding scale analysis.
(2) That he is likely to suffer irreparable harm in the absence of preliminary relief
1. Irreparable Harm at the preliminary injunction stage likely means: serious harm with no monetary equivalent that even comes close.
  1. The risk of injury must be a sufficiently great and sufficiently irreparable to override the risk of error and the shortcuts with defendant’s right to due process (much higher standard because of this – judges routinely find no irreparable injury at the preliminary stage but then do at trial [see LA Coliseum]
    1. At the preliminary stage we are only considering harm that will happen, or become inevitable, before trial
(3) That the balance of the equities tips in his favor; and
1. Risk of harm of granting injunction v. risk of harm in not granting an injunction, considered in light of probability of success on the merits. At the preliminary stage we are only considering harm that will happen, or become inevitable, before trial.
(4) That an injunction is in the public interest

The Status Quo Test (sometimes influences decisions): “the underlying purpose of the preliminary injunction is to preserve the relative positions of the parties until a trial on the merits can be held” (i.e. don’t change the respective relations between the parties)

Test was reaffirmed in the Tenth Circuit in 2003 by a court that said “preliminary injunctions changing the status quo are DISFAVORED”. Plaintiff must make “a strong sowing both with regard to the likelihood of success on the merits and with regard to the balance of harms”

Two Types of Error:

Erroneous Denial: Plaintiff will just have his usual remedy. It is likely defendant is currently already harming P in some way, so when the full trial is adjudicated, if he wins on merits he will be able to seek all damages up to the date of decision.
Erroneous Grant: there is not a tort or a breach of contract action here, defendant otherwise has NO cause of action. If there is an erroneous grant of preliminary injunction that ends up getting reversed, plaintiff is strictly liable for up to the amount of the bond in damages to the defendant (see bonding requirement below)

Bonding Requirement [Rule 65C FRCP]: 65(c): requires a plaintiff who gets an injunction to post a bond “for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained”. Judge sets bond amount at the beginning and Plaintiff decides whether or not to pursue the injunction. Bonding requirement further allocates the risk of error between plaintiff and defendant. [does this only apply to preliminary injunctions or all injunctions?]

Most cases hold: a prevailing defendant is entitled a damages claim for up to the amount of the the injunction bond unless there is a good reason for not requiring the plaintiff to pay in the particular case [Coyne-Delaney]
- Discourages the seeking of preliminary injunction on flimsy grounds [Coyne]
  - Bringing the suit/seeking the prelim in “good faith” is not a sufficient reason for denying damages – reason for the bond is compensatory, not punitive. It is strict liability – doesn’t matter if he was in good faith/negligent/reckless etc.
  - A good reason for denying damages would be that defendant failed to mitigate damages
- Court does not need to award damages. However, if it does, it can only be up to the amount of the bond, PRESUMING plaintiff acted in good faith.

Waiver of Bond: Courts at their discretion can waive bond where they think it would wholly exclude poor plaintiffs from access to injunctive relief

Most courts hold now that whether to apply a bond at all and how much is all discretionary: consider the potential loss to D, financial hardship to P, and public importance of right being forced.
Would assume that if courts are going to waive bond they would increase scrutiny because defendant is thus taking on a larger risk (won’t be able to collect damages)

Appeals: TROs are not appealable, preliminary injunction are – can file a motion to stay the injunction pending an appeal (both denials and grants of preliminary injunctions are appealable – you could actually get an order granting a preliminary injunction pending an appeal if your preliminary injunction is denied).

Rule 65

(a) Preliminary Injunction.

(1) Notice. The court may issue a preliminary injunction ONLY on notice to the adverse party

(b) Temporary Restraining Order

(1) Issuing Without Notice. The court may issue a TRO without written or oral notice to the adverse party or its attorney ONLY IF:

(a) Specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; AND

(b) The movant’s attorney certifies in writing any efforts made to give notice and the reasonswhy it should not be required in this instance [exhibited in Carrol v. President of Princess Anne]

Notice or special situation why not required probably evolved from Due Process – can’t have judgments freely entered against you without a chance to defend yourself
This may not be a super high burden just for Rule 65, but likely Due Process would require an extreme showing to waive the notice requirement

(c) Only good for up to 14 days, depending on what the court sets it at (seems like if court does not...

#11393 - Preliminary Injunctions - Modern American Remedies 4th Ed. Laycock

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