More to come when I have time, but start here:
Here’s the current third circuit standard, which shows that the must be a showing of BOTH a likelihood of success AND irreparable harm, not, as the old case states “A sufficiently strong showing on either the likelihood of success or irreparable harm may justify an injunction”:
We also are aware that, significantly later than this confusion arose, the Supreme Court stated that “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). At first blush that statement would lend support to the divergent standard articulated in Opticians Association of America almost twenty years earlier. But for four reasons we think Winter did not overrule our balancing-of-the-factors standard.
First, the Supreme Court in Winter explained that “[i]n each case … courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at 24, 129 S.Ct. 365 (emphasis added) (quotation omitted). It concluded that “[a]n injunction is a matter of equitable discretion” that requires “the balance of equities.” Id. at 32, 129 S.Ct. 365 (emphasis added). That is why Justice Ginsburg determined that the 178*178 “Court has never rejected [the balancing] formulation, and [did] not believe it [did] so” in Winter. Id. at 51, 129 S.Ct. 365 (Ginsburg, J., dissenting).
That reading of Winter comports with the Supreme Court’s following opinion on temporary equitable orders, Nken v. Holder, 556 U.S. 418, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009), decided in the same term just five months later (with both opinions written by Chief Justice Roberts). There the Court explained that a district court must undertake “consideration of [the] four factors.” Id. at 434, 129 S.Ct. 1749. “Once an applicant satisfies the first two factors, the traditional [equitable relief] inquiry calls for assessing the harm to the opposing party and weighing the public interest.” Id. at 435, 129 S.Ct. 1749. Though Nken dealt with the issuance of a stay pending appeal, the Court explained that the same factors apply as in the preliminary injunction context “not because the two are one and the same, but because similar concerns arise whenever a court order may allow or disallow anticipated action before the legality of that action has been conclusively determined.” Id. at 434, 129 S.Ct. 1749. Read together, these companion cases promote the traditional flexibility to granting interim equitable relief in which the district court has full discretion to balance the four factors once gateway thresholds are met. See id.; Winter, 555 U.S. at 32, 129 S.Ct. 365.
Second, other circuits have agreed with our reading of Winter and Nken. For instance, the Seventh Circuit, citing Winter, has held that a preliminary injunction may issue if the movant demonstrates it will face irreparable harm and has a “plausible claim on the merits,” after which “the `balance of equities’ favors” the movant. Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009) (Easterbrook, C.J.). “How strong a claim on the merits is enough depends on the balance of the harms: the more net harm an injunction can prevent, the weaker the plaintiff’s claim on the merits can be while still supporting some preliminary relief.” Id. Similarly, citing Winter, the D.C. Circuit has declined “to abandon the so-called `sliding scale’ approach to weighing the four preliminary injunction factors” and held that a “party seeking a preliminary injunction must make a clear showing that [the] four factors, taken together, warrant relief….” League of Women Voters of the United States v. Newby, 838 F.3d 1, 6-7 (D.C. Cir. 2016) (emphasis added) (quotations omitted). The Second Circuit also has interpreted Winter and Nken as permitting a district court to continue a “flexible approach” in granting preliminary equitable relief, and that if those cases meant “to abrogate the more flexible standard for a preliminary injunction, one would expect some reference to the considerable history of the flexible standards applied in [the Second Circuit], seven [other] sister circuits, and the Supreme Court itself.” Citigroup Glob. Mkts., Inc. v. VCG Special Opportunities Master Fund, Ltd., 598 F.3d 30, 37-38 (2d Cir. 2010). We find that reasoning persuasive.
Third, no test for considering preliminary equitable relief should be so rigid as to diminish, let alone disbar, discretion. District courts have the freedom to fashion preliminary equitable relief so long as they do so by “exercising their sound discretion.” Winter, 555 U.S. at 24, 129 S.Ct. 365 (quotation omitted). Because those courts are on the frontline and are much more familiar with the unique facts of a particular case, we apply a deferential standard in reviewing their decisions on preliminary equitable relief — abuse of discretion. See Campbell Soup Co., 977 F.2d at 91 (quotation omitted). Indeed, “[t]he essence of equity jurisdiction has been the power of the [court] to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982) (quotations omitted).
179*179 Fourth, disallowing a district court from balancing the four factors is inconsistent with the Supreme Court’s post-Winter instruction in Nken that, when evaluating whether interim equitable relief is appropriate, “[t]he first two factors of the traditional standard are the most critical.” 556 U.S. at 434, 129 S.Ct. 1749. An Opticians Association of America standard — in which all four factors are effectively critical in equal recourse — is logically incompatible with Nken‘s unambiguous holding. What would be the point of creating two gateway factors by placing elevated value on them if all are equally imperative? There would be none. And to require a moving party to prevail on all factors reads out balancing when not all factors favor that party.
Accordingly, we follow our precedent that a movant for preliminary equitable relief must meet the threshold for the first two “most critical” factors: it must demonstrate that it can win on the merits (which requires a showing significantly better than negligible but not necessarily more likely than not) and that it is more likely than not to suffer irreparable harm in the absence of preliminary relief. If these gateway factors are met, a court then considers the remaining two factors and determines in its sound discretion if all four factors, taken together, balance in favor of granting the requested preliminary relief. In assessing these factors, Judge Easterbrook’s observation bears repeating: “How strong a claim on the merits is enough depends on the balance of the harms: the more net harm an injunction can prevent, the weaker the plaintiff’s claim on the merits can be while still supporting some preliminary relief.” Hoosier Energy, 582 F.3d at 725.