We used to have a sliding scale in the Ninth Circuit for analyzing the elements needed to obtain a preliminary injunction, a remedy that’s potentially available in trademark infringement cases.
Just a few years ago, a Ninth Circuit plaintiff needed to show either: “(1) a likelihood of success on the merits and the possibility of irreparable injury; or (2) that serious questions going to the merits were raised and the balance of hardships tips sharply in its favor.” As the court explained, “These two alternatives represent ‘extremes of a single continuum,’ rather than two separate tests…. Thus, the greater the relative hardship to [the party seeking the preliminary injunction,] the less probability of success must be shown.” See, e.g., Clear Channel Outdoor Inc. v. City of L.A., 340 F.3d 810, 813 (9th Cir.2003).
Then came Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008), which reversed a Ninth Circuit preliminary injunction decision and seemingly banished the sliding scale — at least to the extent it enabled a plaintiff to obtain a preliminary injunction with only the “possibility” of irreparable harm. As the court put it, “[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.”
But the sliding scale has slid back into favor.
In January, the Ninth Circuit held that the “‘serious questions’ approach survives Winter when applied as part of the four-element Winter test. That is, ‘serious questions going to the merits’ and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
And last week, the court followed the same path in deciding Developmental Services Network v. Douglas, 2011 WL 5966363 (9th Cir.). It found: “‘Plaintiffs seeking a preliminary injunction in a case in which the public interest is involved must establish that they are likely to succeed on the merits, that they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor, and that an injunction is in the public interest.’ We have glossed that standard by adding that there is a ‘sliding scale’ approach which allows a plaintiff to obtain an injunction where he has only shown ‘serious questions going to the merits’ and a balance of hardships that tips sharply towards the plaintiff … so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.”
So, the sliding scale is alive and well after all — as long as it lives within the four-part Winter test and isn’t applied to lessen the plaintiff’s showing of irreparable harm beneath the threshold of a likelihood of irreparable harm. Until, perhaps, the Supreme Court revisits the issue.