Commercial Litigation and Arbitration

Lingering Doubt — and Circuit Split — Concerning Continued Vitality of Sliding Scale Standard for Preliminary Injunctive Relief

Holiday CVS, LLC v. Holder, 839 F. Supp. 2d 145 (D.D.C. 2012):

Footnote 8. Several members of the Circuit have read the Supreme Court's decision in Winter to cast doubt on the continued validity of the sliding scale approach. See Davis, 571 F.3d at 1296 (Kavanaugh, J, joined by Henderson, J., concurring) ("[U]nder the Supreme Court's precedents, a movant cannot obtain a preliminary injunction without showing both a likelihood of success and a likelihood of irreparable harm, among other things (emphasis in original)); Sherley, 644 F.3d at 393 ("Like our colleagues, we read Winter at least to suggest if not to hold 'that a likelihood of success is an independent, free-standing requirement for a preliminary injunction.'" (quoting Davis, 571 F.3d at 1296 (concurring opinion)). But the Circuit has had no occasion to decide this question because it has not yet encountered a post-Winter case where a preliminary injunction motion survived the less rigorous sliding scale analysis. See Sherley, 644 F.3d at 393 ("We need not wade into this circuit split today because, as in Davis, as detailed below, in this case a preliminary injunction is not appropriate even under the less demanding sliding-scale analysis."). Thus, because it remains the law of this Circuit, the court must employ the sliding scale analysis here.

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