Preliminary injunction

From Wikipedia, the free encyclopedia

A preliminary injunction, in equity, is an injunction entered by a court prior to a determination of the merits of a legal case, in order to restrain a party from going forward with a course of conduct until the case has been decided. If the case is decided against the party that has been enjoined, then the injunction will usually be made permanent. If the case is decided in favor of the party that has been enjoined, the injunction will usually be dissolved or dismissed.

In most courts in the United States, the party seeking the preliminary injunction must demonstrate all four things together:

1. That there is a substantial likelihood of success on the merits of the case,
2. That they face a substantial threat of irreparable damage or injury if the injunction is not granted,
3. That the balance of harms weighs in favor of the party seeking the preliminary injunction
4. That the grant of an injunction would serve the public interest.

The "balance of harms" refers to the threatened injury to the party seeking the preliminary injunction as compared to the harm that the other party may suffer from the injunction.

The United States Supreme Court revisited the requirements for obtaining a preliminary injunction in Winter v. NRDC, Inc., 129 S. Ct. 365 (November 12, 2008).^[1] The Court changed one requirement just slightly:

"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."

[edit] See also

The Impact of eBay on Preliminary Injunctions in Intellectual Property Cases http://www.merchantgould.com/CM/NewslettersandBulletins/The%20Impact%20of%20eBayonPreliminaryInjunctionsinIntellectualPropert%20CasesKSDFeb2008.pdf

Injunctive Relief: Temporary Restraining Orders and Preliminary Injunctions

About Injunctive Relief 

http://www.abanet.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=5310384

The injunction - a court order that directs a party to perform or refrain from performing a particular action - is an exceptionally potent and far-reaching remedy, the grant or denial of which often leads to a cascade of serious consequences. This comprehensive and practical guide to injunctive relief covers all issues that are relevant to these types of motions from pre-filing considerations to appellate relief.

Part I examines the requirements for obtaining preliminary injunctions and temporary restraining orders in each of the Federal Courts of Appeal and for each state.

Part II discusses in detail all of the issues that should be considered before deciding to file a motion for such injunctive relief.

Part III provides very detailed instructions regarding all procedural aspects for filing such motions, including the specific rules for such motions in each state.

The book also includes checklists to make sure all procedures are followed, flowcharts to help practitioners decide whether to file such motions and if so, which type to file, and statistics relating to how often these motions are granted/denied in different types of cases.

A Historical Perspective 1 2 INJUNCTIVE RELIEF: TROs and Preliminary Injunctions The injunction—a court order that directs a party to perform or refrain from performing a particular action—is an exceptionally potent and far-reaching remedy, the grant or denial of which often leads to a cascade of serious consequences. For example, injunctions played a major role in the effort to desegregate the American public education system. Concluding in its 1954 Brown v. Board of Education decision that “separate but equal” schools were nevertheless “inherently unequal,” the Supreme Court remanded the Brown case and companion cases to the district courts in 1955 with an order to enter injunctions necessary to desegregate the public schools “with all deliberate speed.” Over the next 30 years, federal courts employed expansive and often controversial injunctions, including orders mandating bussing of students to eliminate racial disparities among schools and to redress resistance to desegregation by states and school districts. Depending on one’s point of view, injunctions have also protected Americans from unconstitutional ballot initiatives or stymied Americans’ policy choices at the ballot box. In 1992, by a 53 percent to 47 percent margin, Colorado voters passed Amendment 2, an initiative amending Colorado’s constitution to prohibit all legislative, executive, or judicial action at any level of state or local government designed to protect gays and lesbians. Before Amendment 2 took effect, however, its opponents successfully obtained an injunction prohibiting enforcement of the voter-approved constitutional amendment. In addition to classrooms and the ballot box, injunctions have upset businesses and their customers and investors. In 2001 for instance, a federal district judge entered a preliminary injunction prohibiting technology upstart Napster from allowing the exchange of copyrighted songs through its wildly popular online file-sharing service. Recognizing that the injunction would likely shut down the Napster service, many among Napster’s estimated 20 million users moved to download as many free songs as possible before the injunction went into effect. More recently, nearly 4 million customers using the popular BlackBerry wireless e-mail service of Research In Motion, Inc. (RIM) followed RIM’s progress in settling a patent dispute before a federal court made effective its injunction barring RIM from providing the service to customers. Recognizing that an injunction shutting down the BlackBerry service might cripple routine and urgent communications by all three branches of the federal government, the Department of Justice went so far as to file a Statement of Interest with the district court urging that any injunction avoid disruption of governmental use of the BlackBerry system. The injunction’s extraordinary power to desegregate a school system, block a voter-supported ballot initiative, or shut down a popular commercial service relied on by millions of users principally arises from a court’s expansive A Historical Perspective 3 equitable jurisdiction and discretion to exercise such jurisdiction. A court may grant a prohibitory injunction preventing a party from performing an act, or a mandatory injunction compelling a party to perform an act. Because the injunction remedy permits the court to craft decrees to meet the requirements of each case, the court’s power extends beyond merely prohibiting or compelling action and allows the court to impose terms that may be necessary to achieve the purpose of the injunction. The power of injunctive relief is further solidified by the fact that a court’s grant or denial of injunctive relief is typically not disturbed on appeal unless there is a clear abuse of discretion. Nearly every judicial opinion addressing a request for preliminary injunctive relief recognizes the historic principle that such relief is a drastic remedy to be granted sparingly and only in cases of urgent necessity. Despite these admonitions, modern courts are, nevertheless, granting injunctions in a wide variety of cases. For example, injunctions are regularly granted as a remedy for misappropriation of trade secrets; infringement of patents, copyrights, or trademarks; violations of antitrust laws or covenants not to compete; and other kinds of unfair competition. A review of published opinions issued from 2003 through 2006 reflects that, on average, federal district courts granted or partially granted nearly 40 percent of all motions for preliminary injunctions. In sum, in this rapidly developing era of social change, technological development, and government legislation and regulation, the once-extraordinary remedy of preliminary injunctive relief now appears to be quite ordinary. Lawyers who understand the historical transformation of the injunction remedy can often put their thumb on the court’s scale by framing their cases to trigger or negate the judicial and statutory presumptions that have contributed to the modern proliferation of injunctive relief. Our current concept of injunctive relief arose from the English courts of equity, which were administered by the King’s Chancellor rather than judges as in the law courts. The Chancellor, who was a high minister appointed by the King, exercised the King’s arbitrary power to “do justice” in certain cases, including the power to grant injunctive relief. Vested with these equitable powers, the Chancellor was a powerful figure who possessed vast discretion in applying equitable remedies. Typically a bishop of the church, the Chancellor often relied on appeals to conscience in determining whether to grant injunctive relief. Today, instead of appealing to so amorphous and subjective a standard as a conscience, judges balance established factors in deciding whether injunctive relief will be granted. While the Chancellor enjoyed wide discretion to grant injunctive relief, his discretion was nevertheless limited by the reality that no party had a “right” to equitable relief and by the expectation that the grant of equitable relief was 4 INJUNCTIVE RELIEF: TROs and Preliminary Injunctions deemed to be extraordinary, not ordinary. Nonetheless, the scope of the Chancellor’s discretion led many to condemn equity as being overly reliant on the Chancellor’s subjective discretion rather than objective legal principles applied consistently in all cases. If America’s founders made one point exceedingly clear, it was that they disdained any arbitrary exercise of governmental power. Thus, when the founders undertook to draft and ratify a Constitution that contemplated federal courts entrusted with equitable jurisdiction, the Anti-Federalists objected that the grant of equitable powers to the federal courts would invest judges with arbitrary Chancellor-like power “to decide as their conscience, their opinions, their caprice, or their politics might dictate” (Federal Farmer No. 15, Jan. 18, 1788, in 2 The Complete Anti-Federalist 322–23 (H. Storing ed., 1981)), and result in the “entire subversion of the legislative, executive and judicial powers of the individual states.” Brutus No. 11, Jan. 31, 1788, id. at 420. In response, Federalist Alexander Hamilton insisted that equity’s role would follow the English limitations and be very narrow: “the great and primary use of a court of equity is to give relief in extraordinary cases.” The Federalist No. 83, p. 569 (J. Cooke ed., 1961). Unwilling to rely on Hamilton’s word that the federal courts would limit their discretionary use of injunctive relief to extraordinary cases and still distrustful of the equity powers of judges, the founders and later Congresses imposed affirmative limitations on the court’s potential power to use injunctive relief to interfere with federalism and separation of powers principles. Shortly after the Constitution was ratified, for example, Congress enacted the Anti-Injunction Act as part of the Judiciary Act of 1793. The Anti-Injunction Act, 28 U.S.C. § 2283, prohibits federal courts from granting injunctions “to stay proceedings in a State court except as expressly authorized by an Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” The purpose of the Anti-Injunction Act is to preserve federalism by forestalling the inevitable friction between state and federal courts that would ensue from a federal court’s injunction of state judicial proceedings. Later Congresses enacted additional anti-injunction laws to prevent the federal courts from entering injunctions that might interfere with executive branch functions. For example, in 1867, Congress enacted the Tax Anti-Injunction Act, 26 U.S.C. § 7241(a), to prohibit federal courts from restraining the assessment or collection of any tax. The dual objectives of the Tax Anti-Injunction Act are the efficient and expeditious collection of taxes with a minimum of pre-enforcement judicial interference and the protection of the tax collector from litigation pending a refund suit. Thereafter, in 1937, Congress enacted the Tax Injunction Act, A Historical Perspective 5 28 U.S.C. § 1341, which provides that federal courts may not “enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” The Tax Injunction Act’s limitations on the federal courts’ injunctive powers recognize the independence of state governments and protect the states’ collection of tax revenues from disruptive litigation in federal courts. Those limitations also reflect the traditional reluctance of federal courts to intervene in complexities of state tax administration. Concerned that the federal courts’ injunctive powers were being exploited to hinder workers’ ability to engage in nonviolent strikes against their employers and to obstruct the ability of state public utilities to set rates, Congress reacted by enacting legislation limiting the federal courts’ power to order injunctive relief in these contexts. In 1932, Congress enacted the Norris-LaGuardia Act, 29 U.S.C. § 101, which deprives the federal courts of “jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute.” Likewise in 1934, Congress passed the Johnson Act, 28 U.S.C. § 1342, mandating that, except for the specific exceptions listed in the statute, federal courts shall “not enjoin, suspend or restrain the operation of, or compliance with, any order affecting rates chargeable by a public utility and made by a State administrative agency or a rate-making body of a State political subdivision.” Before 1938, the American legal system maintained separate courts of law and equity, with each court following its own rules and procedures. In 1938, with the adoption of the Federal Rules of Civil Procedure, the courts of law and equity merged. The same federal judge can now grant equitable and legal relief. Certain state courts, Illinois among them, retain separate courts of chancery and courts of law, with different judges to hear these disparate types of cases. Although Federal Rule of Civil Procedure 65 provides parties with the procedural mechanism and notice requirements for requesting preliminary injunctive relief before a trial on the merits, Rule 65 does not prescribe any criteria for the courts to apply in assessing a party’s request for preliminary injunctive relief. Thus, Rule 65 continues equity’s tradition of delegating the decision to grant or deny injunctive relief to the court’s discretion. In applying discretion under Rule 65, the federal courts have, in the American tradition, endeavored to guard against the arbitrary application of injunctive power by developing self-imposed standards to evaluate requests for injunctive relief. Although individual circuits and states vary both in the way they formulate their respective tests and the weight they apply to individual factors, as will be discussed in detail in the following chapters, nearly all consider some 6 INJUNCTIVE RELIEF: TROs and Preliminary Injunctions variation of the following four factors: (1) the movant’s likelihood of success on the merits; (2) the likelihood of irreparable harm absent preliminary injunctive relief; (3) the balance of harms between the movant and nonmovant; and (4) the public interest.1 These tests partially, but only partially, negate the fear that injunctive relief will be arbitrarily imposed. Despite the formulation of tests to determine whether injunctive relief will be granted, in certain categories of cases courts have placed a judicial thumb on the scale that has made the grant of preliminary injunctive relief anything but “extraordinary.” In intellectual property cases, for example, courts have applied a “presumption of irreparable harm” and thereby relieved movants from their burden of establishing this factor.2 In 1983, the Federal Circuit Court of Appeals lowered the bar for granting preliminary injunctive relief in patent cases by holding that irreparable injury is presumed if a patent holder shows a likelihood of success on the merits of its patent infringement claim. Since then, the Federal Circuit has applied this lower standard to all patent cases even if infringement and validity are hotly contested issues. See, e.g., PPG Indus. v. Guardian Indus. Corp., 75 F.3d 1558 (Fed. Cir. 1996). Courts have likewise presumed irreparable harm where a plaintiff demonstrates a likelihood of success on a claim alleging the violation of constitutional rights.3 For example, in Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996), the court presumed irreparable harm where the plaintiff prisoner challenged his indefinite confinement in quarantine for his religiously based refusal to submit to a tuberculosis test. The court agreed that the medical isolation violated his Eighth Amendment rights. In Paulsen v. County of Nassau, 925 F.2d 65, 68 (2d Cir. 1991), the court presumed irreparable harm where the plaintiff evangelist group demonstrated that it would likely succeed on its claim that state officials’ prohibition of the group’s efforts to distribute bible study pamphlets to people attending a Judas Priest rock concert violated the group’s First Amendment rights. Likewise, the court applied a presumption of irreparable harm in Deerfield Medical Center v. Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981), where the plaintiff medical group demonstrated a likelihood of success on their 1. For a complete discussion of the preliminary injunction and TRO factors for each Federal Circuit Court of Appeal and each state, see Chapters 2 and 3, infra. 2. For a complete discussion of the presumption of irreparable injury in intellectual property cases, see Chapter 4.B.1, “Intellectual Property Cases Are Generally Entitled to a Presumption of Irreparable Injury,” infra. 3. For a complete discussion of the presumption of irreparable injury in constitutional cases, see Chapter 4.B.3, “Some Constitutional Causes of Action Are Entitled to a Presumption of Irreparable Injury,” infra. A Historical Perspective 7 claim that a city’s refusal to grant a permit to open an abortion clinic violated pregnant women’s Fourth Amendment privacy rights. Where courts have not established their own presumptions of irreparable harm, some state legislatures have enacted legislation instructing courts to presume such harm in certain cases. In Florida, for example, Fla. Stat. § 542.33 provides in pertinent part: [U]se of specific trade secrets, customer lists, or direct solicitation of existing customers shall be presumed to be an irreparable injury and may be specifically enjoined. In the event the seller of the goodwill of a business, or a shareholder selling or otherwise disposing of all her or his shares in a corporation breaches an agreement to refrain from carrying on or engaging in a similar business, irreparable injury shall be presumed. Fla. Stat. § 542.33 (2008). Obviously, a presumption of irreparable harm makes a substantial difference in the outcome of motions for preliminary injunctive relief. Substantially more preliminary injunctions are granted in patent cases, which usually enjoy a presumption of irreparable harm with a showing of a likelihood of success on the merits, as compared with contract cases, which are never entitled to such a presumption. More preliminary injunctions are granted in constitutional cases, which may enjoy a presumption of irreparable harm, than in labor cases, which do not. Perhaps the best example of the impact of the court-created presumption of irreparable harm on the outcome of a case is Sun Microsystems v. Microsoft Corp., 188 F.3d 1115 (9th Cir. 1999), where the propriety of a preliminary injunction turned on the sole issue of whether Sun’s case against Microsoft was framed as a copyright claim, which was entitled to the presumption, or a contract claim, which was not. Sun, alleging claims for breach of contract and copyright infringement, sought a preliminary injunction enjoining Microsoft from distributing Microsoft’s Windows 98 and Internet Explorer products. Finding that Sun was likely to prevail in showing that Microsoft violated the parties’ license agreement and that Microsoft’s use of Sun’s software was not authorized and constituted copyright infringement, the court, with little discussion, applied a presumption of irreparable harm and granted Sun’s motion for preliminary injunction. Although agreeing with the district court that Sun had demonstrated that it was likely to succeed on its allegation that Microsoft had violated the parties’ license agreement, the Ninth Circuit nevertheless vacated Sun’s preliminary injunction on the grounds that the district court improperly applied a presumption of irreparable injury without first considering whether Sun’s allegations 8 INJUNCTIVE RELIEF: TROs and Preliminary Injunctions constituted a copyright-infringement claim, where the presumption of irreparable harm might be warranted, or an ordinary breach-of-contract claim for which there was no presumption of irreparable harm. On remand, the district court denied Sun’s request to reinstate the preliminary injunction because Sun failed to establish that its claims were copyright-infringement claims as opposed to breach-of-contract claims. Sun Microsystems, Inc. v. Microsoft Corp., 81 F. Supp. 2d 1026, 1033 (N.D. Cal. 2000). In the end, the court’s thumb on the scale—in the form of the presumption of irreparable harm—proved to be determinative first of Sun’s original ability and then of its subsequent inability to obtain preliminary injunctive relief against Microsoft. In other cases, courts have imposed requirements designed to tip the scales against the grant of injunctive relief. For instance, the Second, Ninth, and Tenth Circuits adjust the odds against mandatory injunctions, which require a party to act or alter the status quo, by requiring a movant to make a heightened showing of the factors that govern the grant of injunctive relief.4 In the Tenth Circuit, a party requesting a mandatory injunction must establish that the four traditional preliminary injunction factors weigh “heavily and compellingly” in favor of the party seeking injunctive relief. SCFC ILC, Inc. v. VISA USA, Inc., 936 F.2d 1096, 1098–99 (10th Cir. 1991). Needless to say, a heightened standard for mandatory injunctions makes a significant difference in whether courts grant injunctive relief at all. In Abdul Wali v. Coughlin, 754 F.2d 1015, 1025–26 (2d Cir. 1985), for example, prison officials refused to deliver to inmates a third party’s report on prison conditions. The inmates sued and successfully obtained injunctive relief to prevent prison officials from interfering with delivery of this report. The court reasoned that the injunction was not a mandatory but merely a prohibitory order to cease the prison officials’ interference with the delivery of the report. The court went on to explain: “[o]ur discussion of the prisoners’ complaint would be very different indeed if we read it to require [the officials] to provide them with copies of the report.” Id. at 1026. Not all circuits apply a heightened standard for mandatory injunctions. The Sixth Circuit, for example, has rejected the Tenth Circuit’s heightened test for mandatory injunctions on the ground that “the focus always must be on prevention of injury by a proper order, not merely on preservation of the status quo.” United Food & Commer. Workers Union, Local 1099 v. Southwest Ohio Reg’l Transit Auth., 163 F.3d 341, 348 (6th Cir. 1998). 4. For a complete discussion, see Chapter 2.B.3, “Detailed Standards Used by Each Circuit Court of Appeal,” infra, and Chapter 4.E, “How Status Quo Affects Preliminary Injunctive Relief,” infra. A Historical Perspective 9 Over the past 50 years, Congress and state legislatures have enacted legislation that requires a court to enter injunctive relief in certain instances. In some cases, such statutes compel courts to order injunctive relief based on statutory standards rather than application of the traditional four-factor test created by the courts. For example, in 1978 Congress enacted the Petroleum Marketing Practices Act, 15 U.S.C. § 2801 et seq., to establish the substantive and procedural ground rules for oil companies to terminate franchise relationships with their gas station franchisees. The Act states that the court “shall grant a preliminary injunction” if the franchisee shows that his franchise has been terminated or not renewed and there “exists sufficiently serious questions going to the merits to make such questions a fair ground for litigation,” if the court determines, on balance, that the harm to the franchisor (oil company) would be less than that on the franchisee (gas station owner). As a result, the Act requires the court to apply a far easier standard for injunctive relief than would be required by the court’s traditional four-part test. Instead of the “probability of success” that a plaintiff must ordinarily show, courts have noted that the Petroleum Marketing Practices Act requires a plaintiff to demonstrate merely a “reasonable chance of success” to obtain injunctive relief against a franchisor. State legislatures have followed suit and enacted legislation in a wide range of fields that empower and sometimes require courts to issue injunctive relief. North Dakota has enacted legislation that allows crime victims to recover from convicted felons all profits that were attributable to the crime. Under this provision, courts are required to grant preliminary injunctive relief to prevent any waste of profits from a crime that is subject to this statute. N.D. Cent. Code, § 32-07.1-01 (2008). Ohio law, in Ohio Rev. Code Ann. § 4719.15 (2008), provides that courts “shall grant” injunctive relief upon a consumer’s showing that a telephone solicitor has violated any section of Ohio’s code governing the conduct of this profession. Likewise, Idaho Code § 23-1003 (2008) provides that, “upon proof to the court that a wholesaler has made a sale of beer outside his designated geographical territory, the court shall issue an injunction directed to the wholesaler prohibiting sales of beer outside his designated geographical territory.” When a statute authorizes or requires courts to issue injunctive relief, the court’s traditional role of balancing the equities is supplanted by the affirmative obligation to follow the statute and the legislative policy objectives contained within the statute. When parties invoke statutes authorizing injunctive relief, courts need not take into account the equitable principles, such as irreparable injury or the existence of an adequate remedy at law. If the statutory requisites are met, an injunction will issue. 10 INJUNCTIVE RELIEF: TROs and Preliminary Injunctions Since the founders imported the equitable remedy from England in the 18th century, much has changed for litigants seeking injunctive relief and for courts that evaluate whether such relief will be granted. In the past, concerns about the arbitrary use of injunctive relief by the courts were tempered by the courts’ adherence to the maxim that injunctive relief was an extraordinary remedy that was to be sparingly granted. Since then, the courts’ power to issue injunctions was further limited by the enactment of anti-injunction statutes by Congress and state legislatures as well as the courts’ use of widely accepted standards by which requests for injunctive relief are now measured. Two modern developments have created a countercurrent that has altered the principle that injunctive relief is an extraordinary remedy and made such relief more readily obtainable. These developments are (1) the recent explosion of legislation authorizing and sometimes requiring courts to issue injunctions, and (2) the courts’ application of a presumption of irreparable harm in certain categories of cases. By putting their thumbs on the scale, legislatures and courts have transformed the once-extraordinary remedy of injunctive relief into something quite different. As a result of this transformation, parties that once merely hoped for the court to intercede in their disputes with injunctive relief now expect the issuance of such relief as a matter of right. Moreover, this transformation has converted the courts’ former equitable discretion for the issuance of injunctive relief to the much narrower role of enforcing legislative policies set forth in statute in some categories of cases. What is extraordinary about injunctive relief in the modern era is the extent to which the remedy has become obtainable compared with the remedy’s far more limited application in the past. By applying this background, lawyers seeking injunctive relief can dramatically improve their chances of success in three principal ways. First, counsel should give the client’s case a head start by casting the client’s claims, if possible, as one of the many types of claims that trigger judicial presumptions of irreparable harm or impose a lower burden on proof for injunctive relief. As the Sun v. Microsoft case made clear, obtaining injunctive relief on a copyrightinfringement claim—where courts often presume irreparable injury—is far easier than obtaining relief on a breach-of-contract claim where a plaintiff must put on evidence and establish the irreparable injury requirement. Also, given the proliferation of state and federal statutes relaxing a party’s burden or even requiring the imposition of injunctive relief, counsel should carefully research whether any such statutes apply to ease the party’s burden or limit the court’s discretion to deny injunctive relief. Further, a party seeking injunctive relief can improve its odds of winning by requesting an injunction A Historical Perspective 11 that prohibits action rather than an injunction that mandates action. Courts have historically disfavored mandatory injunctions, and many courts continue to require a party seeking mandatory relief to demonstrate that the four traditional preliminary injunction factors weigh “heavily and compellingly” in the movant’s favor. By requesting, for example, an injunction that prohibits the defendant from interfering with the delivery of goods—as opposed to an injunction requiring the defendant to ensure the delivery of goods—a movant avoids the heightened burdens imposed on mandatory injunctions. Finally, if there is a choice of forums, the lawyer can tip the scales in his or her favor by filing the case in the most advantageous forum. Although federal and state courts generally adhere to overarching principles relating to injunctive relief, the specific standards and balancing applied by the courts of different circuits or states can significantly affect the outcome. For example, as discussed above, a party seeking a mandatory injunction has a more difficult burden in the Second, Ninth, and Tenth Circuits than in the Sixth Circuit. Counsel opposing injunctive relief can likewise tip the scales in his or her client’s favor in three primary ways. First, if possible, counsel should attempt to recast the movant’s claims as claims that do not trigger the judicial or statutory presumptions of irreparable harm. Second, in circuits or states that impose a higher burden for mandatory injunctions, counsel should argue that the movant’s request for relief adjusts rather than preserves the existing status quo and must be measured against the heightened standard for mandatory injunctions. Finally, counsel should explore possible arguments that the movant’s request for injunctive relief is barred by any applicable anti-injunction statute. By recognizing and exploiting all available judicial and statutory influences on modern injunctive relief, a lawyer will improve his or her client’s odds of obtaining or resisting the imposition of such relief. About the Authors KIRSTIN STOLL-DEBELL Kirstin Stoll-DeBell is a partner with the law firm of Merchant & Gould, where her practice focuses exclusively on intellectual property law. She is experienced in handling a variety of litigation matters covering a broad spectrum of technology areas, from simple mechanical inventions to complex computer software, semiconductor circuit design and processing, and chemical compositions. She won her first motion for a preliminary injunction in 2001 and obtained an order enjoining the adverse party from infringing her client’s patent on a lighted Christmas ornament. In addition to her emphasis on litigation, Kirstin performs strategic IP portfolio analysis, negotiates and drafts patent, trademark, and trade secret licensing agreements and prosecutes trademark and patent applications. Kirstin graduated from the University of Colorado, Boulder in 1995 with a major in Molecular, Cellular, and Developmental Biology and a minor in Biochemistry. She became admitted to practice before the United States Patent and Trademark Office in 1997 and earned her law degree from the University of Colorado School of Law in 1998, where she was a two-time National Finalist in the Saul Lefkowitz National Moot Court Competition with her co-authors. Kirstin and her husband Todd DeBell have two sons, Nicolas and Maximillian, and a Yorkshire terrier named Tiffany. NANCY L. DEMPSEY Nancy Dempsey is Special Counsel to RE/MAX International, Inc., where she focuses her law practice in the area of intellectual property protection and litigation. Nancy’s trademark law experience includes policing and litigating 458 About the Authors trademark and domain name matters, litigating Opposition and Cancellation proceedings before the Trademark Trial and Appeal Board, prosecuting trademark applications, and structuring trademark licensing agreements. In the patent law arena, Nancy’s experience ranges from litigating patent infringement matters to prosecuting patent applications in various fields ranging from mechanical engineering to particle physics. Additionally, Nancy has experience in litigating copyright matters, prosecuting copyright applications, and drafting copyright licensing agreements. Prior to joining RE/MAX, Nancy was an associate attorney in the Denver office of LeBoeuf, Lamb, Greene & MacRae LLP, now known as Dewey & LeBoeuf, LLP. Nancy is a member of the Colorado Bar and is licensed to practice before the United States Patent and Trademark Office, the United States Supreme Court, the Court of Appeals for the Tenth Circuit, and the U.S. District Court for the District of Colorado. She received her Juris Doctor from the University of Colorado in 1998, where she served as an editor of the University of Colorado Law Review, and was a two-time National Finalist in the Saul Lefkowitz National Moot Court Competition with her co-authors. Nancy received her Bachelor of Science degree magna cum laude in Engineering Physics from the University of Colorado in 1995 with a minor in Applied Mathematics. Like her husband and co-author, Brad Dempsey, Nancy has completed the Introductory Sommelier Class & Exam administered by the Court of Master Sommeliers. Nancy and Brad have a son, Camden, and a daughter, Margaux. BRADFORD E. DEMPSEY A partner with the Finance and Restructuring Group of Faegre & Benson LLP, Brad Dempsey has represented numerous national and community banks and other lenders in workouts as well as collection, foreclosure, and lender liability litigation matters throughout the United States. In addition, Brad has represented secured creditors, trustees, unsecured creditors, landlords, intellectual property licensors and licensees, vendors, and purchasers in complex bankruptcy cases and adversary proceedings in all regions of the United States. Brad has also successfully argued an appeal before the Colorado Supreme Court. Brad also leads a wine industry services practice, assisting clients with wine-related interests in Australia, France, California, Oregon, Washington, and Colorado. He participated in the development of the administrative rules implementing Colorado’s recently adopted Alternating Proprietorship legislation. About the Authors 459 Brad is an amateur winemaker, has completed the Introductory Sommelier Class & Exam administered by the Court of Master Sommeliers, and has served as a judge for the Denver International Wine Competition. Prior to joining Faegre & Benson LLP, Brad was a litigation partner with the Denver office of Holme Roberts & Owen LLP. Brad began his career as a judicial law clerk to the Hon. Donald E. Cordova (1999–2001) and Hon. Charles E. Matheson, Chief Judge (1999), United States Bankruptcy Court for the District of Colorado. Brad is admitted to practice in Colorado, the U.S. District Court for the District of Colorado, the Court of Appeals for the Tenth Circuit, and the United States Supreme Court.