1.  Courts consider 4 factors: Likelihood of success on the merits Irreparable injury to P in the absence of preliminary relief Balance of the hardships/equities Public interest  Lower courts generally took two approaches prior to Winter: o Require P to prevail on all 4 factors, or o Apply a sliding scale approach re P’s harm/likelihood of success so that a large showing on one could lessen the showing on the other

2. What order does P seek in Winter? Is it likely to prevail on the merits of the legal issue? If so, why does the SCT say the lower court erred? Which version of the four-part test for preliminary injunctions does SCT use? Lower courts after Winter:

3.  What is the nature of P’s alleged harm if the injunction doesn’t issue?  What is the nature of D’s alleged harm the injunction issues?  Toward whom does the balance of equities tip?  Where does the public’s interest lie?

4. All versions of the test require P to have irreparable harm for the preliminary injunction to issue. What does irreparable harm mean in this context? Timing of Harm: Injury must necessarily occur before time for a trial on the merits Nature of Harm: at this stage, small incremental harms aren’t good enough money can’t be adequate compensation. Courts want to see significant harms for which damages are truly inadequate. o What if the Winter P’s could show that a specific marine species was likely to die out within a year because they couldn’t reach a traditional mating habitat as a likely result of Navy’s actions. Trial can’t be held for 18 months. o How is that harm different than the one P’s actually (apparently) showed in Winter?  La Coliseum v. NFL (p. 356) – why isn’t loss of the Raiders irreparable injury to the Coliseum at the preliminary injunction stage when it clearly is at the permanent injunction stage?

5.  Conventional Wisdom: o Preliminary injunctions are only granted to preserve the status quo (aka last peaceable contested status quo).  Why?

6. In Winter? In O Centro? What does the “status quo” concept add to courts’ use of the four factor balancing test – i.e., when is it most likely to make a difference?

7.  2 kinds of risk of error re preliminary injunction: o Risk that preliminary injunction will be erroneously denied – hurts P P can sue for damages for harm done while D was not enjoined (i.e., during the period w/out preliminary relief and until permanent injunction issues o Risk that preliminary injunction will be erroneously granted – hurts D D has no damages remedy for the harm done while the preliminary injunction was wrongfully in place – P hasn’t done anything wrong so D has no cause of action o How can we protect D from harm of being wrongfully enjoined?

8.  Because of the possibility that preliminary injunction or TRO will be erroneously issued, jurisdictions have BOND requirements: o FRCP 65(c) – “The court may issue a preliminary injunction or TRO only if the movant gives security in an amount the court considers proper to pay costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The US, its officers, and its agencies are not required to give security.” o MRCP 92.02(d) – “No injunction or restraining order shall issue, …until the plaintiff … shall have executed a bond with sufficient surety or sureties to the other party, in such sum as the court may deem sufficient to secure … all damages that may be occasioned by such injunction or restraining order …, conditioned that the plaintiff will abide by the decision that shall be made thereon and pay all sums of money, damages and costs that shall be adjudged if the injunction or temporary restraining order shall be dissolved.”

9.  Federal – discretionary (despite seemingly mandatory language) o In what circumstances might a court waive the bond requirement? o There is such a thing as inadvertent waiver – D is supposed to raise the bond issue. If D doesn’t and the court fails to require a bond then provisional relief is binding even if there is no bond.  Missouri o Bond is a jurisdictional prerequisite – P’s burden to make sure is set o Preliminary injunction/TRO are void if bond is not posted o BUT courts can set bond at a nominal amount Same reasons as “waiver” above for setting bond at nominal amount

10.  Conventional Wisdom: o When D is subject to a preliminary injunction but then prevails on the merits at trial, she has been wrongfully enjoined. Note FRCP & MRCP essentially get you to the same result here. FRCP requires P to post bond in payment for costs incurred if D “wrongfully enjoined.” MRCP requires P to post bond for costs incurred if injunction dissolved (Missouri courts hold that dissolution of injunctions usually equals a determination that the injunction was wrongfully obtained). o What if D (as in Coyne-Delany) prevails on the merits at trial due to a change in the substantive law while the preliminary injunction was in place – should courts allow D to recover on the bond?

11.  In a trademark infringement case the court issues a preliminary injunction enjoining D from selling his product in 30 states. At trial, the court determines that infringement occurred in only 3 states and narrows the injunction. Has defendant been wrongfully enjoined? o Yes – this is a classic case of D being wrongfully enjoined in at least 27 states.  P instigates a lawsuit and obtains a preliminary injunction. The lawsuit is later dismissed with prejudice due to P’s total failure to prosecute and the injunction is dissolved. Has defendant been wrongfully enjoined?  P files lawsuit and obtains preliminary injunction. The lawsuit is later dismissed because P & D have settled and agree to ask the court to dissolve the injunction. Has D been wrongfully enjoined?

12.  Rarely. There must be a very good reason for the court to refuse to enforce a bond once it has already been set. o Why? If a court can refuse to set a bond (federal) or set it at a nominal amount (Missouri) – why can’t it refuse to enforce it?  For what reason can a court refuse to enforce a bond? o Change in the substantive law (much like in Coyne-Delany) o D’s failure to mitigate damages A court should not refuse to enforce the bond simply because P acted in good faith when bringing the lawsuit – bond is designed to protect D against judicial error regardless of P’s lack of malice

13.  General Rule – the bond amount is the limit of P’s liability o Why? Bond is a compromise between P&D’s interests -- alleviates D’s harm from risk of error but also allows P to know ahead of time what liability is.  BUT: o Some other source of law may provide independent liability for P aside from the bond E.g., malicious prosecution o Some statutes specifically provide greater recovery than the bond amount

14.  D can recover only those actual losses stemming from the wrongful granting of the preliminary injunction/TRO. Can’t recover damages caused by the litigation generally o What are the kinds of damages caused by the wrongful granting of provisional relief that D can recover? e.g., lost profits if operation of business wrongfully enjoined e.g., storage costs of construction equipment during period construction project enjoined e.g., maybe atty’s fees related to defending against, dissolving the temporary injunction, or setting the bond amount (depending upon the jurisdiction) recover as damages (not as fees) unlikely to recover any attorneys fees in federal court