In The Real Truth About Obama, Inc. v. Federal Election Commission, the U.S. Court of Appeals for the Fourth Circuit explicitly jettisoned the test for granting preliminary injunctions set forth in Blackwelder Furniture Co. of Statesville v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir. 1977) in favor of the test provided by the U.S. Supreme Court in the recent decision of Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365 (2008). Virginia state courts, although not bound by the Fourth Circuit’s decisions, have adopted the Blackwelder test, so it will be interesting to see whether Virginia decides to stick with the old test or go with the new, stricter standard of Winter.
The Blackwelder test enabled a petitioner to obtain a preliminary injunction if it could show, through a balancing of the hardships, (1) the likelihood of irreparable harm to the plaintiff if the preliminary injunction is not granted; (2) the likelihood of harm to the defendant if the preliminary injunction is granted; (3) the likelihood that the petitioner will succeed on the merits; and (4) that the preliminary injunction is in the public interest.
The U.S. Supreme Court in Winter set forth the following four-factor test: (1) petitioner is likely to succeed on the merits, (2) petitioner is likely to suffer irreparable harm if the injunction is not granted, (3) the balance of equities tips in favor of petitioner, and (4) the injunction is in the public interest. Winter requires all four prongs to be satisfied, and the probability of irreparable harm to the petitioner must be greater than a mere “possibility.”
While the two tests appear similar, there are important differences explained by Judge Neimeyer in his opinion for the panel. First, while the Blackwelder test only required a petitioner to show a “grave or serious question” for litigation to pass the third prong, the Winter test demands that the petitioner show that he is likely to succeed in litigation. Second, Winter requires that the petitioner show a likelihood of irreparable harm to himself, while Blackwelder allowed a comparison of harms between the petitioner and respondent. Third, Winter demands a close consideration of the public interest prong, while courts using the Blackwelder analysis rarely considered the public interest. And finally, while Blackwelder allowed for a malleable consideration of the four prongs together, Winter requires that a petitioner must meet all four prongs as stated, independently of each other.
In the end, if Virginia courts decide to adopt the Winter test, preliminary injunctions will become harder to obtain as compared to the Blackwelder era.
