New York and federal courts agree that preliminary injunctions are “drastic” remedies1 to be used rarely. And that makes a lot of sense. A party seeking a preliminary injunction is asking the court to affect the rights of the parties on limited information (often very limited information). Yet—beyond the universal agreement that preliminary injunctions are “drastic” and should be rare—a review of preliminary injunction landscape could lead one to believe that the agreement amongst courts ends there. While the case law is ample, and familiar themes and analyses appear often in opinion after opinion, the decisions can at times be difficult to harmonize. This is no doubt due, in part, to the fact that each court has significant discretion when evaluating an application for a preliminary injunction. As they say in pharmaceutical commercials, results may vary. For each case that supports your position, there are likely one or more cases that go the other way.2 At the end of the day, most courts considering preliminary injunction motions appear to approach them like Justice Potter Stewart ogling his way through another film: “I know it when I see it.”3
Now, the factors that a court considers in deciding whether to grant a preliminary injunction are familiar enough. We have all seen, read, written and argued them time and again. To be awarded a preliminary injunction, and a party must convince the court that it (1) is likely to succeed on the merits, (2) has the balance of the equities in its favor, and (3) will suffer “irreparable harm” for which money damages would be inadequate in the absence of injunctive relief.4 But something that is at least as familiar to seasoned litigators is the pause and the slow, deep breath that always comes after it, whenever a client asks that question: “So what are our chances of getting an injunction?” Uh, well … .
