Commercial Litigation and Arbitration

Injunctions — Circuit Split as to Continuing Vitality of Sliding Scale Approach to Injunctive Relief

United States v. One, 793 F. Supp. 2d 157, 161 n. 5 (D.D.C. 2011):

Generally, in deciding whether to grant interim injunctive relief, the Court must evaluate whether: "(1) the plaintiff has a substantial likelihood of success on the merits; (2) the plaintiff would suffer irreparable injury were an injunction not granted; (3) an injunction would substantially injure other interested parties; and (4) the grant of an injunction would further the public interest." Ark. Dairy Coop. Ass'n v. United States Dep't of Agric., 573 F.3d 815, 821, 387 U.S. App. D.C. 346 (D.C. Cir. 2009) (citing Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317-18, 332 U.S. App. D.C. 407 (D.C. Cir. 1998)). Although these four factors have typically been evaluated on a "sliding scale" — whereby if the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor, see Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288,1291-92, 387 U.S. App. D.C. 205 (D.C. Cir. 2009) — it is unclear whether this sliding-scale approach is still controlling in light of the Supreme Court's decision in Winter v. Natural Resources Defense Council, 555 U.S. 7, 129 S. Ct. 365, 374, 172 L. Ed. 2d 249 (2008). See Sherley v. Sebelius, No. 10-5287, 644 F.3d 388, 2011 U.S. App. LEXIS 8686, at *10-12 (D.C. Cir. Apr. 29, 2011) (discussing the circuit split on the issue of whether Winter precludes continuing adherence to the sliding-scale approach, then concluding that "[w]e need not wade into this circuit split today because . . . in this case a preliminary injunction is not appropriate even under the less demanding sliding-scale analysis").

See also our post of April 29, 2010.

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