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Ninth Circuit Reaffirms "Sliding Scale" Standard for Injunctions


On January 25, 2011, the United States Ninth Circuit Court of Appeals reaffirmed the Circuit's "sliding scale" standard for granting or denying motions for temporary or permanent injunctions. (Alliance for the Wild Rockies v. Cottrell, No. 09-35756 ["Cottrell"]). This decision resolved doubts over whether the Ninth Circuit's long-prevailing standard was still valid after the U.S. Supreme Court's 2008 decision in Winter v. National Resources Defense Council, 129 S.Ct. 365 (2008) ("Winter").

Traditionally, there are four criteria for determining whether to grant an injunction: (1) the likelihood of the party seeking the injunction will prevail on the merits of the case, (2) the moving party is likely to suffer irreparable injury if the injunction is not granted, (3) granting the injunction will not harm the party opposing the injunction in a manner that exceeds the harm to the moving party; and (4) the public interest is served by either granting or denying the injunction.

For decades, the Ninth Circuit has held that these criteria must be evaluated on a sliding scale. In other words, the greater the likelihood of harm, the less likelihood of success that must be shown. Conversely, the weaker the showing of harm, the greater must be the likelihood the moving party ultimately will prevail on the merits. However, the Ninth Circuit also did not require that the moving party show a likelihood of irreparable harm, but only the possibility of harm.

In the 2008 Winter decision, however, the Supreme Court overruled the Ninth Circuit on the irreparable harm issue, holding that the party seeking an injunction must show an actual likelihood of irreparable harm. The Court then reiterated the four traditional injunction criteria in somewhat inflexible terms, although in a concurring opinion Justice Ginsburg stated that the Court did not intend to overrule the sliding scale approach followed in several circuits. Some courts, including the trial court in the Cottrell case, thought the Winter case had ended the sliding scale standard.

The Ninth Circuit reversed, holding that the Winter decision had only overruled the "possibility of harm" test of the Ninth Circuit. A three-judge panel concluded that the sliding scale standard was still the law in the Ninth Circuit. The panel also held that the "serious issue" part of the sliding scale standard was also still viable in the Ninth Circuit. Therefore, if the likelihood of harm is great and obvious, the party seeking an injunction need not show a likelihood of success on the merits, but only that the case raises serious issues of law and fact.

One of the three judges on the panel, filed a separate, concurring opinion that explained the rationale for the serious issues test. He observed that injunctions are requested in the early stages of litigation before the facts and the legal issues have been fully developed. Nevertheless, it usually is relatively easy to determine whether the moving party will suffer harm if the injunction is not granted; indeed that question is frequently undisputed. However, because the case will not have been fully developed, it is harder to predict who eventually will prevail on the merits, and yet it is not hard to determine whether the case raises serious issues.

It is very helpful to have a clear ruling by the Ninth Circuit on this issue, which arises frequently in the district courts located in the nine states within the Ninth Circuit. District judges will now no longer have to guess about the impact of Winter on Ninth Circuit injunction jurisprudence.

Nossaman's litigation attorneys frequently handle injunction issues in both the federal and state courts, both seeking and opposing injunctions on behalf of their clients, and our attorneys remain informed as to developments in this area of the law.

John T. Hansen is a partner in the San Francisco office of Nossaman LLP and specializes in bankruptcy, corporate reorganization, employment/disability law and civil litigation. He can be reached at 415.438.7245 or

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