Simplifying a Complex ERISA Case
continued from page 13
was $1,234,740. If he had not resigned,
contract action that would be tried to
Cir. 1992).
it would have been $1,845,377 in the
a jury may find herself in federal court
2
year after April 2007. Thus, as PPM
with no jury trial and limited discovery.
argued, the alleged restructuring of
Daul v. PPM Energy, 2008 WL
4283262 at *10 (D. Or. Sept. 17, 2008).
knowing early on if a dispute involves
458 F.3d 955, 963 (9th Cir. 2006) (en
plaintiffs to experience a Material
an ERISA plan. ERISA imposes detailed
banc).
Alteration in Compensation under the
claims handling procedures that must
29 C.F.R. § 2560.503-1.
55 PP.
be followed in benefits cases. If these
Abatie, 458 F.3d at 959.
procedures are not followed, that may
6
3. Results and a
Few Lessons.
result in the district court applying
a de novo standard of review rather
PPM’s motion for summary judgment
and dismissed their VAR plan and
AlP claims. 7 The district court found
that plaintiffs had not experienced a
Circuit Courts that have considered the
injunctive relief consistent with the
question. According to one District
Ninth Circuit’s "traditional" test:
Court, the Cottrell Court may also have
"A plaintiff seeking a preliminary
Inarecent opinion authored by
created a split on this issue within the
injunction must establish that he is
a wind farm and then selling it to a
JUdge William A Fletcher Alliance
Ninth Circuit.
likely to succeed on ..
utility or other investor (as opposed to
fot the Wild Rockies v Cottrell the
than the more deferential abuse of
keeping the wind farm and selling the
Nrh Circuit held that one aspect of
discretion standard (assuming the plan
electricity generated by it).
its "sliding scale" test for preliminary
has adequate discretionary language in
compensation actually increased after
the change in control.’ Plaintiffs moved
for reconsideration under Fed. R. Civ. P.
60(b) and the court denied that motion.
Plantiffs then appealed to the Ninth
Circuit. On July 19, 2011, the Ninth
Circuit affirmed the district court’s
decision granting PPM’s motions for
summary judgment.
A few lessons emerge from this
case. First, in any dispute involving any
type of employee benefit program,
counsel for the employee and the
employer should, at the outset,
consider whether the program is an
ERISA plan. As this case illustrates,
the answer to this question is not
always clear. But, if the program is
an ERISA plan, the consequences can
be significant. ERISA provides for
jurisdiction in federal courts and every
circuit has held that there is no right to
a jury trial in ERISA cases. 9 In addition,
Finally, this case is also a
good reminder of how a seemingly
complex case can be won by focusing
ruling, plaintiffs voluntarily dismissed
their Constructive Dismissal claim.
Additionally, the court found that
plaintiffs’ VAR plan claim was barred
plan document. As explained above,
based on waiver and estoppel because
plaintiffs’ claims that certain changes
plaintiffs voluntarily eliminated their
to the VAR plan and the AlP caused a
rights under the VAR plan and replaced
Material Alteration in Compensation
them with the RVAR plan.
potentially raised a host of complex
Ingram v. Martin Marietta Long
issues concerning PPM’s finances and its
Term Disability Income Plan for
renewable energy business in general.
Salaried Employees of Transferred
Tackling those issues (which were
GE Operations, 244 F.3d 1109, 1114
probably not amenable to summary
(9th Cir. 2001); see also McKnight v.
judgment) would have been costly
Brentwood Dental Group, Inc., 2005 WL
and time-consuming. PPM avoided
2290326 at *3 (D. Neb. Sept. 20, 2005)
that thicket by focusing instead on the
(collecting cases).
"total direct compensation" carve-out
See Opeta v. Northwest Airlines
in the SSPP and the undisputed fact
Pension Plan for Contract Employees,
that plaintiffs’ compensation actually
484 F.3d 1211 (9th Cir. 2007) (holding
increased after the change in control.
that in most ERISA cases "only
Thus, as we argued, plaintiffs had not
the evidence that was before the
By Paul W Conable and Frank I. Weiss
Tonkon Torp LLP
N
Paul W Conable
injunctive relief, the
the merits, that he
Winter Changes the
Landscape
Before the Supreme Court’s
is likely to suffer
irreparable harm
in the absence of
"serious questions"
decision in Winter, cases in the Ninth
preliminary relief,
approach, remains
Circuit articulated two standards for
that the balance of
good law.’ The
granting preliminary injunctions,
equities tips in his
viability of any part
described by the Ninth Circuit as
favor, and that the
of the sliding scale
"traditional" and "alternative." 3
injunction is in the
test was an open
Under the alternative standard, a
public interest."’
question following
party seeking a preliminary injunction
the Supreme Court’s
was able to meet its burden by
Circuit has acknowledged that one
opinion in Winter v.
Frankj Weiss
Following Winter, the Ninth
demonstrating "either (1) a likelihood
formulation of its alternative test
NRDC. 2 In concluding that the "serious
of success on the merits and the
likelihood of success plus possibility of
questions" test remains valid following
possibility of irreparable injury; or (2)
irreparable harmis no longer viable.
Winter, the Ninth Circuit in Cottrell
serious questions going to the merits
The question remained, however,
joined an existing split among the
and a balance of hardships strongly
whether the other alternative test
favoring [the moving party]."’ At
"serious questions" going to the merits
a minimum, the party seeking the
plus a balance of hardships strongly
injunction was required to demonstrate
favoring the moving partysurvived.
a fair chance of success on the merits,
In her dissent in Winter, Justice
or questions serious enough to require
Ginsburg pointed out that the Court
litigation .5
had not rejected every version of a
In Winter, the Supreme Court
rejected part of the Ninth Circuit’s
the particular sliding scale at issue in
the case before it. 1
experienced a Material Alteration in
plan administrator at the time of
Compensation under the SSPR This
determination should be considered.");
affirmed the District Court’s issuance
district court and the Ninth Circuit
Waggener v. Unum Life Ins. Co. of Am.,
of an injunction based on a finding of
Circuit Courts addressed the question
agreed.
38 F.Supp.2d 1179, 1183 (S.D. Cal. 2002)
a strong likelihood of success on the
whether some version of a "sliding
("Because of the interest in both
scale" for injunctive relief survived
maintaining costs at a reasonable level
merits coupled with the "possibility"
of irreparable harm .6 The Supreme
the Supreme Court’s opinion. The
and allowing for the prompt and fair
Court reversed, holding that "the
Fourth Circuit said no. 11 The Second
Endnotes
Velarde v. PACE Membership
9
"sliding scale" for injunctive relief, only
alternative test. The Ninth Circuit had
1
benefits cases are supposed to be a
Daul v. PPM Energy, Inc., 267 F.R.D.
on a single important provision in the
in many ERISA cases, discovery is limited
or sometimes not allowed because
"Build-to-sell" refers to building
641, 643-44 (D. Or. 2010). After this
the first place).
Material Alteration in Compensation
given that their total direct
the "Serious Questions" Testlor Injunctive Relkf
Aba tie v. Alta Health & Life Ins. Co.,
Employers also benefit from
the VAR Plan and the AlP did not cause
The district court granted
Surviving Winter: The Ninth CircuitReaffi .rm. s
Following Winter, three other
Warehouse, Inc., 105 F.3d 1313, 1317
resolution of claims, discovery [in an
Ninth Circuit’s ’possibility’ standard is
and Seventh Circuits said yes. 12 District
record.’ Thus, an employee who
(9th Cir. 1997); Delaye v. Agripac, Inc.,
ERISA case] simply cannot be as broad
too lenient. 117 In so holding, the Court
courts within the Ninth Circuit also
thought she had a state court breach of
39 F.3d 235, 237 (9th Cir. 1994); Bogue v.
and overreaching as in other types of
articulated a standard for preliminary
wrestled with the question .13
Ampex Corp., 976 F.2d 1319, 1322 (9th
cases."). J
review of an existing administrative
Please continue on page 17
14
FALL 2011
6
VOL. 30 No. 3
FALL 2011
0
VOL.30 No.3
15
Featuring the Honorable Mark A. Drummond: The Eight Keys of the
Art of Persuasion
Surviving Winter
How do you achieve success in the courtroomand beyond? Mark Drummond
was a successful trial lawyer for 20 years before spending the last decade
presiding over jury and bench trials. Combining his own experience with
techniques he acquired through his training around the world, Mark gives you
persuasion tools that you can use from the day the case comes into your office
to verdict.
The Ninth Circuit Reaffirms
the "Serious Questions" Test
Plus
continued from page 15
established that they were "likely to
going to the merits and that the
succeed on the merits." The Ninth
balance of hardships tips decidedly
Circuit held that this was insufficient:
in the plaintiff’s favor; the remaining
addressed for the first time in a
The District Court was also required
elements set forth in Winter must also
published opinion the question
to address the question whether the
be established. In other words, the
whether any formulation of the sliding
case presented "serious questions"
moving party must also show that there
scale approach survived Winter. 14 The
on the merits. "Because it did not
is a likelihood of irreparable injury
plaintiffs were environmental advocacy
apply the ’serious questions’ test, the
and that the injunction is in the public
In Cottrell, the Ninth Circuit
"Visual Presentations During Oral Argument to Trial Judges" with David B.
Markowitz, Markowitz Herbold Glade & Mehlhaf PC
groups who moved for a preliminary
district court made an error of law in
interest. The Ninth Circuit summarized
injunction blocking certain logging
denying the preliminary injunction
the post-Winter rule as follows:
Storytelling and themes during trial with Carla Lundblade and Tom Capps
projects. In denying the injunction,
sought by [the plaintiffs].’7 Rather
the District Court quoted Winter
than remanding to allow the district
survives Winter when applied as part of
and ruled: "Plaintiffs do not show a
court to apply the "serious questions"
the four-element Winter test. That is,
likelihood of success on the merits,
test, the Court simply found that the
"serious questions going to the merits"
The Honorable Alta Jean Brady, Deschutes County Circuit Court, and
the Honorable Mary Mertens James, Marion County Circuit Court, on
persuasion from a judge’s perspective
"Tales From a Small County on the Banks of the Mississippi" as told by the
Honorable Mark A. Drummond, Circuit Court, Eighth Judicial Circuit,
Quincy, Illinois
Please join the Litigation Section for the 2012 Institute Dinner and presentation
of the 15th Annual Owen M. Panner Professionalism Award to the Honorable
Lynn R. Nakamoto, Oregon Court of Appeals, Salem.
19th Annual Litigation Institute & Retreat
Name - -
Firm Name
Phone
Address
City
case presented
questions on the
determination prevents the issuance of
merits and ordered
a preliminary injunction..... 15
that the injunction be
The Ninth Circuit reversed and
ordered the District Court to enter the
State
Zip
REGISTRATION AND MEALS:
t $300 Early Registitrnn (by 2/10/i2.) (rn?ludes box luck)
TOTAL REGISTRATION FEES (L112) (712) $
U
THREE WAYS TO REGISTER
1. ONLINE at www.osbar.org/events.
2. PHONE: To register with VISA or MasterCard, please call the CLE Service Center at (503) 431-6413, or toll
free in Oregon at (800) 452-8260, ext. 413.
3. MAIL: Complete this form and mail with check payable to Oregon State Bar, Attn: CLE Registration, P.O.
Box 231935, Tigard, OR 97281-1935.
entered."
After Cottrell, the
"serious questions"
test is not only viable
that the mere possibility of irreparable
as an "alternative"
harm was no longer enough to support
formulation
1
.
The
Ninth Circuit has now
the court concluded that the District
made clear that it is
Court had abused its discretion in
a mandatory part of the inquiry when
and a balance of hardships that tips
finding on the record before it that
a party seeks a preliminary injunction.
sharply toward the plaintiff can support
-
there was no likelihood of irreparable
Even where a district court finds no
a preliminary injunction, so long as
harm from the challenged logging
likelihood of success, it is legal error for
the plaintiff also shows that there is a
projects. Because irreparable harm was
the court not to also consider whether
in fact likely, the Ninth Circuit ruled,
the case presents "serious question" on
likelihood of irreparable injury and that
the injunction is in the public interest .21
the first element of the test for an
the merits. 1 ’
injunction was met.’ 6
- $320 Regular Registration (after 2/10/12) (includes box lunch) .............. $____________
Friday Dinner:
dinner(s) at $65 each ................................$
Beef
Fish
Vegetarian
(Please indicate the number of entrees desired)
li7Ti
requested injunction. Citing Winter,
However
.
L1I
the Cottrell court first acknowledged
the issuance of an injunction
Bar
serious
nor that irreparable injury is likely in
the absence of an injunction. This
[T]he "serious questions" approach
The Court then turned to the
question whether the "serious
Thus, in the Ninth Circuit, a
preliminary injunction must issue where
the plaintiff demonstrates "that serious
Judge Mosman Concurs,
Citing the Need for Flexibility
Oregon District Judge Michael W.
questions" version of the sliding scale
questions going to the merits were
Mosman sat on the Cottrell panel by
test remained viable. Agreeing with
raised and the balance of hardships
designation and authored a concurring
the Second and Seventh Circuits, the
tips sharply in the plaintiff’s favor,"
opinion that provided a trial judge’s
court concluded that this formulation
provided the other elements of the
perspective on the practical application
of the test for injunctive relief survives
test for injunctive relief are met . 20 The
of the "serious questions" test. Judge
Winter. As noted, the Cottrell District
Cottrell Court was careful to explain
Mosman lauded the majority opinion
Court had confined its analysis to the
that the "serious questions" test is not
for maintaining the flexibility necessary
test articulated in Winter, namely
complete in itself. It is not enough to
for trial judges to appropriately handle
whether the moving parties had
show the existence of serious questions
requests for preliminary injunctions.
Please continue on next page
16
FALL 2011
0
VOL. 30 No. 3
FALL 2011
0
VOL.30 No.3
17
Surviving Winter
Surviving Winter
continued from page 17
continued from page 18
Prior to the decision in Cottrell, district
court judges openly worried about
whether Winter had eliminated all
discretion, requiring trial courts to
adhere to a rigid standard when
evaluating requests for preliminary
prevail. Accordingly, in many cases it is
only really possible to evaluate whether
succeed on the merits, that he is
likely to suffer irreparable harm
reconciliation is far from certain.
Cottrell, 632 F.3d 1127 (9th Cir. 2011).
Energy Rural Elec. Co-Op. Inc. v. John
Although Cottrell never explicitly says
2
Hancock Life Ins. Co., 582 F.3d 721, 725
Ed. 2d 249 (2008).
the case presents serious questions on
in the absence of preliminary
that "serious questions" can exist
the merits. On the other hand, as Judge
relief, that the balance of
even absent a likelihood of success,
Mosman noted, the courts are often in a
equities tips in his favor, and
better position to predict the likelihood
that an injunction is in the public
of harm. Accordingly,
interest." 25
13
See Save Strawberry Canyon v. Dept
that is the implication of the court’s
of Energy, 2009 WL 1098888 (N.D. Cal.
holding. The Cottrell court ordered
Motorcyclist Assn v. Watt, 714 F.2d 962,
2009) (listing cases).
that an injunction was mandated
965 (9th Cir. 1983)).
14
the appropriate balance
The court then discussed Cottrell
and the serious questions test .26 Noting
requiring the courts to make
that both the Supreme Court in Winter
a determination about the
and the Ninth Circuit in Selecky had
probability of irreparable
stated that a party must show likelihood
harm, which they are well
of success to obtain an injunction,
equipped to do, but only
Judge Navarro sought to harmonize
injunction can exist even where a district
requiring them to find
the "likelihood of success" and "serious
court does not find it "likely" that the
serious questions on the
questions" standards:
moving party will prevail on the merits.
adopted in Cottrell strikes
(7th Cir. 2009).
Cassim v. Bowen, 824 F.2d 791, 795
(9th Cir. 1987) (quoting American
notwithstanding the District Court’s
he argues, the approach
555 U.S. 7, 129 S. Ct. 365, 374, 172 L.
conclusionwhich was not disturbed
on appealthat the moving parties
"do not show a likelihood of success on
the merits. 11211 It follows, then, that a
"serious question" sufficient to justify
(or, in Cottrell, require) issuance of an
Otherwise, the Cottrell District Court’s
But see Greater Yellowstone Coalitior
’ Paramount Land Co. LP v. Cal.
v. Timchak, 2009 WL 971474 (9th Cir.
Pistachio Comm’n, 491 F.3d 1003, 1008
2009) (unpublished disposition).
(9th Cir. 2007).
15
Cottrell, 632 F.3d at 1130.
16
Id. at 1135.
872 F.2d 289, 293 (9th Cir. 1989). See
17
Id.
also Johnson v. California State Bd. Of
18
Id,
Accountancy, 72 F.3d 1427, 1430 (9th Cir.
19
Indeed, as a practical matter, it could
1995) (quoting Martin v. International
be argued that courts should simply
Olympic Committee, 740 F.2d 670,
skip the "likelihood of success" inquiry
675 (9th Cir. 1984)). The traditional
and proceed directly to the "serious
and alternative tests were sometimes
questions" test, since any case in which
characterized as one test, "a continuum
there is a likelihood of success on the
Hunt v. National Broadcasting Co.,
relief, in the absence of a complete
merits, so that they are not forced to
record and despite the traditional
make predictions about the eventual
To satisfy Winter, the movant
conclusion that the moving parties had
in which the required showing of
outcome based upon a limited record.
must show that he is "likely" to
merits will necessarily also present
latitude that is granted to judges in
not shown likelihood of success would
harm varies inversely with the required
succeed on the merits. To the
serious questions on the merits.
have been dispositive. Accordingly,
showing of meritoriousness."
extent the Cottrell court meant to
Judge Navarro’s attempt to equate
v. City of Portland, 909 F. Supp. 767,
dealing with matters of equity. The
majority opinion in Cottrell also echoed
this concern, quoting District Judge
Alsup’s opinion in Save Strawberry
Canyon: "Can it possibly be that the
Judge Navarro Attempts
to Harmonize Cases
At least one district court within
this Circuit has questioned whether
Supreme Court and Ninth Circuit have
Cottrell is consistent with Winter and
taken away the ability of district judges
prior Ninth Circuit law applying Winter.
to preserve the status quo pending at
least some discovery and further hearing
on the merits in such cases? 1122
The standard adopted by the
Ninth Circuit in Cottrell addresses this
concern by permitting a district judge to
preserve the status quo until the merits
In Quiroga v. Chen, 13 District Judge
Gloria M. Navarro denied motions for
a temporary restraining order and
preliminary injunction. In denying the
requested injunction, Judge Navarro
first noted that Cottrell was not the
first published Ninth Circuit opinion
20
Id. at 1134-1135, citing Lands Council
v. McNair, 537 F.3d 981, 987 (9th Cir.
imply that its "serious questions"
"serious questions" with "likely success"
771 (D. Or. 1995) (quoting San Diego
standard was a lesser standard
2008).
may not square with the holding in
Committee against Registration & Draft
21
than "likely," it is inconsistent
Cottrell, at 1135.
Cottrell.
(CARD) v. Governing Bd. of Grossmont
22
Cottrell, 632 F.3d at 1134 (quoting
Union High School Dist., 790 F.2d 1471,
Save Strawberry Canyon, 2009 WL
with Winter and Selecky. The
Court must reconcile the cases by
Conclusion
interpreting the Cottrell "serious
questions" requirement to be in
harmony with the Winter/Selecky
"likelihood" standard, not as
being in competition with it. The
movant must therefore show
that there are serious questions
as to the merits of the case such
can be properly analyzed by issuing an
interpreting Winter. Quoting the Ninth
injunction in instances in which clear
Circuit’s 2009 opinion in Stormans, Inc. v.
likely. A claim can be weaker
irreparable injury would otherwise
Selecky, 24 the court stated:
on the merits if it raises "serious
result and there are, at least, serious
Rohman
that success on the merits is
questions" and the amount of
In Cottrell, the Ninth Circuit
resolved an open question regarding
test for injunctive relief following the
Supreme Court’s ruling in Winter. In
so doing, the Court joined an existing
23
NRDC v. Winter, 518 F.3d 658, 696-97
(9th Cir. 2008).
and, in the eyes of at least one district
judge, may have also created a split
25
Quiroga, 735 F. Supp. 2d at 1228.
Ct. at 375.
26
There are actually three Cottrell
8
opinions at the Ninth Circuit. The
Winter v. NRDC, 555 U.S. at 20, 129 S.
Ct. at 374.
open question for the time being, it is
harm the injunction will prevent
Mosman noted in his concurrence, this
recognized that its "possibility"
is very great, but the chance of
possible that further guidance from the
approach is consistent with the practical
test was "definitely refuted" by
success on the merits cannot be
Supreme Court will be forthcomng on
reality that, when acting with a limited
Winter, and that "[t]he proper
weaker than "likely. -27
this issue.
record on an expedited basis, judges
legal standard for preliminary
often are not in a position to accurately
injunctive relief requires a party
predict which party will ultimately
to demonstrate ’he is likely to
Endnotes
1
Alliance for the Wild Rockies v.
Quiroga court was discussing the
American Trucking Assn, Inc. v. City of
second. Alliance for the Wild Rockies
Los Angeles, 559 F.3d 1046, 1052 (9th Cir.
v. Cottrell ("CottreIlII"), 622 F.3d 1045
2009).
(2010). Cottrell II was withdrawn
Winter v. NRDC,
of authority within the Ninth Circuit
itself. Thus although Cottrell resolves an
735 F. Supp. 2d 1226 (D. Nev. 2010).
24586 F.3d 1109, 1127 (9th Cir. 2009).
Winter v. NRDC, 555 U.S. at 21, 129 S.
Circuit Court split on the question
The Ninth Circuit has explicitly
would agree with this attempted
1098888 at *3)
6
the viability of the "serious questions"
questions going to the merits. As Judge
Whether the Cottrell Court
1473 n3 (9th Cir. 1986)).
129 S. Ct. at 392
and amended on denial of rehearing,
(Ginsburg, J. dissenting).
see Cottrell, 632 F.3d at 1127. Thus,
11
the current version of Cottrell is the
Real Truth About Obama, Inc. v. Fed.
Election Comm’n, 575 F.3d 342, 347 (4th
third, and the Quiroga court was
Cir. 2009), vacated on other grounds
addressing Cottrell II. However, the
U.S., 130 S. Ct. 2371, 176 L. Ed. 2d
second and third Cottrell opinions are
764 (2010).
not materially different on the issues
12
discussed in Quiroga.
Citigroup Global Mkts., Inc. v VCG
Special Opportunities Master Fund Ltd.,
27
Quiroga, 735 F. Supp. 2d at 1229.
598 F.3d 30, 35 (2d Cir. 2010); Hoosier
29
632 F.3d at 1130.
n
Please continue on next page
IF
FALL 2011
0
VOL. 30 No. 3
FALL 2011 VOL. 30
No. 3
1
Surviving Winter
Surviving Winter
continued from page 17
Prior to the decision in Cottrell, district
court judges openly worried about
whether Winter had eliminated all
continued from page 18
prevail. Accordingly, in many cases it is
only really possible to evaluate whether
the case presents serious questions on
succeed on the merits, that he is
likely to suffer irreparable harm
in the absence of preliminary
the merits. On the other hand, as Judge
relief, that the balance of
adhere to a rigid standard when
Mosman noted, the courts are often in a
equities tips in his favor, and
evaluating requests for preliminary
better position to predict the likelihood
that an injunction is in the public
discretion, requiring trial courts to
of harm. Accordingly,
interest.’
1121
the appropriate balance
Cottrell, 632 F.3d 1127 (9th Cir. 2011).
Energy Rural Elec. Co-Op. Inc. v. John
Although Cottrell never explicitly says
2
Hancock Life Ins. Co., 582 F.3d 721, 725
that "serious questions" can exist
Ed. 2d 249 (2008).
The court then discussed Cottrell
and the serious questions test .26 Noting
555 U.S. 7, 129 S. Ct. 365, 374, 172 L.
(7th Cir. 2009).
Cassim v. Bowen, 824 F.2d 791, 795
even absent a likelihood of success,
13
See Save Strawberry Canyon v. Dept
that is the implication of the court’s
(9th Cir. 1987) (quoting American
of Energy, 2009 WL 1098888 (N.D. Cal.
holding. The Cottrell court ordered
Motorcyclist Ass’n v. Watt, 714 F.2d 962,
2009) (listing cases).
that an injunction was mandated
965 (9th Cir. 1983)).
’ Paramount Land Co. LP v. Cal.
14
Pistachio Comm’n, 491 F.3d 1003, 1008
2009) (unpublished disposition).
(9th Cir. 2007).
15
Cottrell, 632 F.3d at 1130.
16
Id. at 1135.
872 F.2d 289, 293 (9th Cir. 1989). See
17
Id,
also Johnson v. California State Bd. Of
18
Id.
Accountancy, 72 F.3d 1427, 1430 (9th Cir.
19
Indeed, as a practical matter, it could
1995) (quoting Martin v. International
be argued that courts should simply
Olympic Committee, 740 F.2d 670,
skip the "likelihood of success" inquiry
675 (9th Cir. 1984)). The traditional
and proceed directly to the "serious
notwithstanding the District Court’s
he argues, the approach
adopted in Cottrell strikes
reconciliation is far from certain.
conclusionwhich was not disturbed
on appealthat the moving parties
requiring the courts to make
that both the Supreme Court in Winter
a determination about the
and the Ninth Circuit in Selecky had
probability of irreparable
stated that a party must show likelihood
harm, which they are well
of success to obtain an injunction,
equipped to do, but only
Judge Navarro sought to harmonize
injunction can exist even where a district
requiring them to find
the "likelihood of success" and "serious
court does not find it "likely" that the
serious questions on the
questions" standards:
moving party will prevail on the merits.
"do not show a likelihood of success on
the merits." 28 It follows, then, that a
"serious question" sufficient to justify
(or, in Cottrell, require) issuance of an
Hunt v. National Broadcasting Co.,
But see Greater Yellowstone Coalition
v. Timchak, 2009 WL 971474 (9th Cir.
and alternative tests were sometimes
Otherwise, the Cottrell District Court’s
questions" test, since any case in which
characterized as one test, "a continuum
there is a likelihood of success on the
relief, in the absence of a complete
merits, so that they are not forced to
record and despite the traditional
make predictions about the eventual
To satisfy Winter, the movant
conclusion that the moving parties had
in which the required showing of
merits will necessarily also present
outcome based upon a limited record.
must show that he is "likely" to
not shown likelihood of success would
harm varies inversely with the required
succeed on the merits. To the
serious questions on the merits.
have been dispositive. Accordingly,
showing of meritoriousness." Rohman
20
extent the Cottrell court meant to
Id. at 1134-1135, citing Lands Council
Judge Navarro’s attempt to equate
v. City of Portland, 909 F. Supp. 767,
imply that its "serious questions"
V.
McNair, 537 F.3d 981, 987 (9th Cir.
"serious questions" with "likely success"
771 (D. Or. 1995) (quoting San Diego
standard was a lesser standard
2008).
may not square with the holding in
Committee against Registration & Draft
21
than "likely," it is inconsistent
Cottrell, at 1135.
Cottrell.
(CARD) v. Governing Bd. of Grossmont
22
Cottrell, 632 F.3d at 1134 (quoting
Union High School Dist., 790 F.2d 1471,
Save Strawberry Canyon, 2009 WL
latitude that is granted to judges in
dealing with matters of equity. The
majority opinion in Cottrell also echoed
this concern, quoting District Judge
Alsup’s opinion in Save Strawberry
Judge Navarro Attempts
to Harmonize Cases
At least one district court within
Canyon: "Can it possibly be that the
this Circuit has questioned whether
Supreme Court and Ninth Circuit have
Cottrell is consistent with Winter and
taken away the ability of district judges
prior Ninth Circuit law applying Winter.
to preserve the status quo pending at
In Quiroga v. Chen, 23 District Judge
least some discovery and further hearing
Gloria M. Navarro denied motions for
on the merits in such cases?""
a temporary restraining order and
The standard adopted by the
Ninth Circuit in Cottrell addresses this
concern by permitting a district judge to
preserve the status quo until the merits
can be properly analyzed by issuing an
preliminary injunction. In denying the
requested injunction, Judge Navarro
first noted that Cottrell was not the
first published Ninth Circuit opinion
interpreting Winter. Quoting the Ninth
with Winter and Selecky. The
Court must reconcile the cases by
interpreting the Cottrell "serious
questions" requirement to be in
harmony with the WinteriSelecky
"likelihood" standard, not as
being in competition with it. The
movant must therefore show
that there are serious questions
as to the merits of the case such
that success on the merits is
injunction in instances in which clear
Circuit’s 2009 opinion in Stormans, Inc. v.
likely. A claim can be weaker
irreparable injury would otherwise
Selecky, 24 the court stated:
on the merits if it raises "serious
result and there are, at least, serious
Conclusion
questions" and the amount of
resolved an open question regarding
test for injunctive relief following the
so doing, the Court joined an existing
Ct. at 375.
Winter v. NRDC, 555 U.S. at 20, 129 S.
Ct. at 374.
and, in the eyes of at least one district
judge, may have also created a split
harm the injunction will prevent
open question for the time being, it is
is very great, but the chance of
possible that further guidance from the
approach is consistent with the practical
test was "definitely refuted" by
success on the merits cannot be
Supreme Court will be forthcomng on
reality that, when acting with a limited
Winter, and that "[t]he proper
weaker than "likely. 1127
this issue.
record on an expedited basis, judges
legal standard for preliminary
would agree with this attempted
Endnotes
1
Alliance for the Wild Rockies v.
586 F.3d 1109, 1127 (9th Cir. 2009).
25
Quiroga, 735 F. Supp. 2d at 1228.
26
There are actually three Cottrell
opinions at the Ninth Circuit. The
second. Alliance for the Wild Rockies
v. Cottrell ("Cottrell II"), 622 F.3d 1045
2009).
(2010). Cottrell II was withdrawn
10
and amended on denial of rehearing,
Winter v. NRDC, 129 S. Ct. at 392
(Ginsburg, J. dissenting).
see Cottrell, 632 F.3d at 1127. Thus,
11
the current version of Cottrell is the
Real Truth About Obama, Inc. v. Fed.
Election Comm’n, 575 F.3d 342, 347 (4th
third, and the Quiroga court was
Cir. 2009), vacated on other grounds
addressing Cottrell II. However, the
_U.S., 130 S. Ct. 2371, 176 L. Ed. 2d
second and third Cottrell opinions are
764 (2010).
12
Whether the Cottrell Court
735 F. Supp. 2d 1226 (D. Nev. 2010).
24
Los Angeles, 559 F.3d 1046, 1052 (9th Cir.
of authority within the Ninth Circuit
itself. Thus although Cottrell resolves an
1098888 at *3)
23
Quiroga court was discussing the
American Trucking Ass’n, Inc. v. City of
Circuit Court split on the question
recognized that its "possibility"
predict which party will ultimately
Winter v. NRDC, 555 U.S. at 21, 129 S.
Supreme Court’s ruling in Winter. In
The Ninth Circuit has explicitly
injunctive relief requires a party
(9th Cir. 2008).
the viability of the "serious questions"
Mosman noted in his concurrence, this
to demonstrate ’he is likely to
NRDC v. Winter, 518 F.3d 658, 696-97
In Cottrell, the Ninth Circuit
questions going to the merits. As Judge
often are not in a position to accurately
1473 n3 (9th Cir. 1986)).
not materially different on the issues
Citigroup Global Mkts., Inc. v VCG
discussed in Quiroga.
Special Opportunities Master Fund Ltd.,
27
Quiroga, 735 F. Supp. 2d at 1229.
598 F.3d 30, 35 (2d Cir. 2010); Hoosier
28
632 F.3d at 1130.
Please continue on next page
18
FALL 2011 fi VOL. 30
No. 3
FALL 2011
VOL. 30 No. 3
19