February 28, 2010 - 12:15am
Judge Trenga's Perspective on the Preliminary Injunctive standards following Winter v. NRDC Posted by: Administrator

Judge Anthony J. Trenga shared his perspectives on the Preliminary Injunction standards following the Fourth Circuit’s adoption of Winter v. NRDC, 129 S.Ct. 365 (2008) in Real Truth about Obama, Inc. v. FEC, 575 F.3d 342 (4th Cir. 2009) in a "View from the Bench" CLE hosted by the Northern Virginia Chapter of the Federal Bar Association. The need to clearly establish the likelihood of success on the merits was paramount. The former "flexible interplay" of (a) irreparable harm; (b) balance of the equities; (c) likelihood of success on the merits; and (d) public interest has been replaced with the requirement that an independent demonstration by the moving party as to each factor must be demonstrated. Despite the routine practice of supporting motions for preliminary injunction with affidavits or verified complaints, Judge Trenga noted that one holdover from the Blackwelder case was that testimony could still be permitted to assist a "perplexed judge." Recent opinions reflect a greater scrutiny of the injunction factors. In FBR Capital Markets & Co. v. Short, 2009 U.S. Dist LEXIS 94558 (E.D.Va Oct. 9, 2009) (J. O’Grady), plaintiff’s motion for a preliminary injunction in a theft of trade secrets case was denied upon a determination that although plaintiff showed a risk of loss, it had not demonstrated any actual loss of customers; further, any demonstrated loss of income could be compensated, undermining the "irreparable harm" factor. In a franchisee/franchisor dispute with covenants not to compete and trademark claims, the court again denied injunctive relief upon determining that inconsistencies in the facts precluded a finding that the plaintiff was likely to succeed on the merits. Allegra Network LLC v. Reeder, 2009 U.S. Dist LEXIS 103688 (E.D.Va. Nov. 4 2009) (J. O’Grady). In a building construction matter, plaintiff’s motion for an injunction was denied upon defendants’ demonstration that not only could plaintiff not establish any of the necessary factors, he had waited for a year to bring the matter to court. Glassman v. Arlington County, Va et al, 1:09cv01249 (Jan.22, 2010).