Posted by Post Authored By: Alan J. Gocha and Alex D. Pappas
Attorneys practicing in the Seventh Circuit have likely encountered the use of the phrase “better than negligible” to describe the standard for establishing a likelihood of success in the preliminary injunction context. Following a series of recent Seventh Circuit decisions, however, there is a “better than negligible” chance that this practice is improper.
In its 2018 decision Winter v. Natural Resources Defense Council, Inc., the Supreme Court set forth the standard that a party “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.”[1] Following Winter, circuit courts have adopted several diverging frameworks for weighing these factors.[2]
In the Seventh Circuit, a movant must establish that: “(1) she is likely to succeed on the merits, (2) she is likely to suffer irreparable harm in the absence of preliminary relief; and (3) legal remedies are inadequate.” [3] Upon such a showing, courts in the Seventh Circuit apply a sliding scale approach, weighing the harms to the moving party, other parties, and the public. [4] In 1982, the Seventh Circuit in Omega Satellite Products Co. v. City of Indianapolis used the phrase “better than negligible” to describe the threshold for showing a likelihood of success in cases where the balancing of harms analysis tipped handedly in the movant’s favor:
“If the harm to the plaintiff from denial of the preliminary injunction would be very great and the harm to the defendant from granting it very small, then the injunction should be granted even if the defendant has a better chance of prevailing on the merits than the plaintiff, provided the plaintiff’s chances are better than negligible; and vice versa.” [5]
The “better than negligible” language has, notably, been often cited and utilized, appearing in hundreds of judicial opinions in the Seventh Circuit. [6]
Critically, however, four recent Seventh Circuit decisions have rejected the appropriateness of this standard and have clarified that a movant must demonstrate its claim has some likelihood of success on the merits, not merely a better than negligible chance. [7] In Mays v. Dart—a case concerning the legality of the conditions at the Cook County Jail during the COVID-19 pandemic—the Seventh Circuit analyzed the history of the “better than negligible” standard and definitively concluded that it is not the law of the Seventh Circuit. [8] The court explained that “the ‘better than negligible’ standard was retired by the Supreme Court” and the “selectively quoted phrase” was never intended to be an “unadorned statement of the applicable standard.” [9] The court went on to explicate that a movant must demonstrate that “its claim has some likelihood of success on the merits” and “[w]hat amounts to ‘some’ depends on the facts of the case at hand because of [its] sliding scale approach.” [10] Under this approach, “the more likely the plaintiff is to win on the merits, the less the balance of harms needs to weigh in his favor, and vice versa.” [11]
Attorneys are advised to stay apprised of the applicable standard for preliminary injunctions in their circuit, including being cognizant of the fact that the “better than negligible” standard has been retired. [12] Indeed, there is at least some likelihood that a misapprehension of the applicable standard could affect the outcome of a motion for a preliminary injunction or opposition thereto.
About the Authors
Alan J. Gocha is a graduate of Georgetown Law and a successful litigator. His practice is primarily focused on complex intellectual property and commercial litigation. Alan has served as lead counsel in several state and federal court cases, both at the trial court and appellate levels, and commercial arbitrations.
Alex D. Pappas is a magna cum laude graduate of Georgetown Law and a law clerk on the U.S. District Court for the Northern District of Illinois.
[1] Winter v. Nat. Resources Def. Council, Inc., 555 U.S. 7, 20 (2008)
[2] See M D. Moore, The Preliminary Injunction Standard: Understanding the Public Interest Factor, 117 Mich. L. Rev. 939, 940–41 (2019).
[3] Cook Cty. V. Wolf, 962 F.3d 208, 221 (7th Cir. 2020).
[4] See id.; Johnson & Johnson, Inc. v. Adv. Inventory Mgt., Inc., 20-CV-3471, 2020 WL 5880136, at *7 (N.D. Ill. Oct. 2, 2020).
[5] Omega Satellite Prods. Co. v. City of Indianapolis, 694 F.2d 119, 123 (7th Cir. 1982) (emphasis added).
[6] A Westlaw search for “better than negligible” on October 7, 2020 returned more than 620 in-circuit decisions.
[7] See generally Vialva v. Watson, 20-2710, 2020 WL 5586715 (7th Cir. Sept. 18, 2020); Mays v. Dart, 20-1792, 2020 WL 5361651, at *9 (7th Cir. Sept. 8, 2020); Illinois Republican Party v. Pritzker, 20-2175, 2020 WL 5246656 (7th Cir. Sept. 3, 2020); Purkey v. U.S., 964 F.3d 603 (7th Cir. 2020), cert. denied, (20A12), 2020 WL 4006838 (U.S. July 16, 2020); see also Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034, 1046 (7th Cir. 2017))
[8] Mays, 2020 WL 5361651 at *7.
[9] Mays, 2020 WL 5361651 at *7; accord Nken v. Holder, 556 U.S. 418, 434 (2009) (“It is not enough that the chance of success on the merits be ‘better than negligible.’”).
[10] Mays, 2020 WL 5361651 at *5.
[11] Id.
[12] See generally Rachel A. Weisshaar, Hazy Shades of Winter: Resolving the Circuit Split over Preliminary Injunctions, 65 Vand. L. Rev. 1011, 1031 (2012) (discussing the evolution Supreme Court jurisprudence on preliminary injunctions).