My thanks to Mack Sperling at North Carolina Business Litigation Report and Rob Hoskins at ERISABoard for the heads-up on a new decision from the Fourth Circuit Court of Appeals that changes the standard for injunctive relief.
In Real Truth About Obama, Inc. v. Federal Election Com’n, 2009 WL 2408735 (4th Cir. 2009), the court held that its decision in Blackwelder Furniture Co. of Statesville v. Seilig Mfg. Co., Inc., 550 F.2d 189 (4th Cir. 1977), with its balance-of-hardship test, could no longer be applied in granting or denying preliminary injunctions in the Fourth Circuit, in light of the United States Supreme Court’s decision in Winter v. Natural Resources Defense Council Inc., 129 S.Ct. 365 (2008).
Mack’s post about Real Truth includes a chart that shows the differences between the Blackwelder standard and the one established by Winter, in which the Supreme Court held that alleged irreparable harm to marine mammals that resulted from the Navy’s training exercises using a particular frequency of sonar was outweighed by the public interest and the Navy’s interest in effective, realistic training of its sailors.
In Winter, the Ninth Circuit had applied a standard that allowed the district court to issue a preliminary injunction based only on the “possibility” of irreparable harm if the plaintiff demonstrated a strong likelihood of prevailing on the merits. The Supreme Court held that this standard was too “lenient” and that the appropriate standard required a plaintiff to demonstrate the “likelihood” of irreparable harm.
The Supreme Court held that a plaintiff seeking a preliminary injunction must establish that it is likely to succeed on the merits, that it is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in its favor, and that an injunction is in the public interest.
In Real Truth, Judge Paul Niemeyer wrote for a unanimous court that, “[o]ur Blackwelder standard in several respects now stands in fatal tension with the Supreme Court’s 2008 decision in Winter.”
Specifically, he found that Winter’s requirement ”that the plaintiff clearly demonstrate that it will likely succeed on the merits is far stricter than the Blackwelder requirement that the plaintiff demonstrate only a grave or serious question for litigation.” (Emphasis in original.) The court also noted that each of Winter’s four requirements must be established, while Blackwelder had allowed its factors to be applied more flexibly, to the extent that not all of the factors were necessarily satisfied.
Although a party seeking injunctive relief in the Fourth Circuit must satisfy all four of Winter‘s — and Real Truth‘s — requirements, I think the requirement that a party must now demonstrate a likelihood of success on the merits will be the most difficult to satisfy.