Commercial Litigation and Arbitration

Did the Sliding-Scale Preliminary Injunction Test Survive Winter? Circuit Split

Converdyn v. Moniz, 2014 U.S. Dist. LEXIS 127838 (D.D.C. Sept. 12, 2014):

The District of Columbia Circuit has applied a "sliding scale" approach in evaluating the preliminary injunction factors. Sherley, 644 F.3d at 392. Under [*22]  this analysis,

[i]f 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. For example, if the movant makes a very strong showing of irreparable harm andthere is no substantial harm to the non-movant, then a correspondingly lower standard can be applied for likelihood of success. Alternatively, if substantial harm to the nonmovant is very high and the showing of irreparable harm to the movant very low, the movant must demonstrate a much greater likelihood of success. It is in this sense that all four factors must be balanced against each other.

Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009) (citations andinternal quotation marks omitted).2

2 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 [*24]  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, . . . 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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